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12314144 | Emory v. Housing and Community Development Corp. of Hawai'i | Emory v. Housing & Community Development Corp. of Hawai'i | 2009-11-30 | 28693 | 472 | 472 | 121 Haw. 472 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Emory v. Housing and Community Development Corp. of Hawai'i | November 30, 2009
28693
Emory v. Housing and Community Development Corp. of Hawai'i | 15 | 93 | Affirmed | |
12313725 | Kona Village Realty, Inc. v. Sunstone Realty Partners XIV, LLC | Kona Village Realty, Inc. v. Sunstone Realty Partners XIV, LLC | 2009-09-25 | 28840 | 257 | 257 | 121 Haw. 257 | 121 | Hawaii Reports | Supreme Court of the State of Hawaii | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Kona Village Realty, Inc. v. Sunstone Realty Partners XIV, LLC | 217 P.3d 1281
SUPREME COURT OF HAWAI'I
Kona Village Realty, Inc. v. Sunstone Realty Partners XIV, LLC
28840
09/25/2009 | 28 | 160 | Dismissed
121 Hawai'i 110, 214 P.3d 1100 | |
12313536 | Bayley v. Bayley | Bayley v. Bayley | 2009-08-31 | 27884 | 201 | 201 | 121 Haw. 201 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Bayley v. Bayley | Bayley v. Bayley
27884
08/31/2009 | 8 | 63 | Vacated, affirmed & remanded | |
12313304 | State v. Nading | State v. Nading | 2009-07-21 | 29254 | 32 | 32 | 121 Haw. 32 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Nading | 29254
State v. Nading | 5 | 31 | Affirmed | |
12314192 | State v. O'Donnell | State v. O'Donnell | 2009-12-29 | 29730 | 473 | 473 | 121 Haw. 473 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. O’Donnell | 29730
State v. O’Donnell | 5 | 34 | Affirmed | |
12314259 | STATE of Hawai'i, Plaintiff-Appellee, v. Matsu THORNTON, Defendant-Appellant, and Howard Gipson, Defendant | State v. Thornton | 2009-12-01 | No. 29429 | 533 | 540 | 121 Haw. 533 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | WATANABE, PRESIDING J., FOLEY, and FUJISE, JJ. | STATE of Hawai'i, Plaintiff-Appellee, v. Matsu THORNTON, Defendant-Appellant, and Howard Gipson, Defendant. | 221 P.3d 511
STATE of Hawai'i, Plaintiff-Appellee, v. Matsu THORNTON, Defendant-Appellant, and Howard Gipson, Defendant.
No. 29429.
Intermediate Court of Appeals of Hawai'i.
Dec. 1, 2009.
Taryn R. Tomasa, Deputy Public Defender, State of Hawaii, on the briefs, for Defendant-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, for Plaintiff-Appellee.
WATANABE, PRESIDING J., FOLEY, and FUJISE, JJ. | 3790 | 23219 | Opinion of the Court by
WATANABE, J.
Defendant-Appellant Matsu Thornton (Thornton) appeals from the judgment en tered by the Circuit Court of the First Circuit (circuit court) on August 25, 2008, convicting and sentencing him for Unauthorized Possession of Confidential Personal Information in violation of Hawaii Revised Statutes (HRS) § 708-839.55 (Supp.2008).
The sole issue raised by Thornton on appeal is that the circuit court erred in denying his motion to suppress evidence. More specifically, Thornton claims that the police exceeded the scope of his consent to a search for firearms and ammunition when they searched his black Guess wallet (wallet) and discovered another person’s driver’s license (license). We agree with Thornton and reverse the judgment.
BACKGROUND
A.
On January 23, 2007, Honolulu Police Department (HPD) Officer Kawika Nishimoto (Officer Nishimoto) stopped a car at the intersection of Ala Wai Boulevard and ‘Olohana Street “for expired motor vehicle tax.” Thornton was in the driver’s seat of the ear, and Howard Gipson (Gipson) was in the front passenger’s seat. Jason Pistor, then an HPD officer (Officer Pistor), also responded to the scene. Although it was past midnight, the area of the traffic stop “was well lit” by overhanging street lights and both officers had their duty flashlights. Thornton presented his identification and vehicle registration and insurance card to Officer Nishimoto, who, suspecting that the insurance card was fraudulent, went to call the insurance company named on the card.
Meanwhile, Officer Pistor provided cover for Officer Nishimoto. Standing beside Thornton’s car, Officer Pistor observed the outline of a bullet-proof vest under Thornton’s t-shirt and suspected that a firearm or ammunition may be inside the car. Officer Pistor expressed that Thornton seemed nervous, his eyes were red, and he repeatedly placed his hands underneath his seat. Officer Pistor also smelled alcohol coming from the car and asked Thornton to exit the car for a field sobriety test, which Thornton passed.
At Officer Pistor’s request, Thornton agreed to allow a search of his car and signed a written consent form that stated, in relevant part:
I, [Thornton] do hereby give my consent to have my auto, & contents, bags described as follows: NVJ679 searched by members of the [HPD]: [Officer] Pistor.
I understand that the Police are searching for evidence of the crime of Possession Prohibited/firearms, more specifically, Firearms, Ammunition.
I understand that I have a constitutional right to refuse to allow this search and I hereby waive this right.
I understand that I have a right to consult with an attorney before allowing this search, and I hereby waive this right.
I am fully aware that any property found which is the fruit (stolen property) or instrumentality of a crime (weapons, etc.), or contraband (property which cannot be legally possessed) may be used against me in a criminal prosecution in a court of law.
I am not presently under the influence of drugs or intoxicating beverage and am not mentally unstable.
I give my consent voluntarily and have not been threatened, coerced, or intimidated in any manner, nor have any promises been made to me in return for my giving my consent to this search.
(Blank lines and description of information to be filled in on blank lines omitted.)
Thornton and Gipson then exited the vehicle and Officer Pistor began his search. In the space between the driver’s door and seat, Officer Pistor found a plastic bag that contained a crystal substance, later identified as methamphetamine. Next, under the front passenger’s seat, he discovered a “green bluish” plastic box that contained a scale and crystal methamphetamine. Lastly, Officer Pistor located a closed black wallet lying flat on the driver’s seat. Inside the wallet, Officer Pistor found “other i.d.’s[,]” including the license at issue in this case. Thereafter, the officers placed Thornton and Gipson under arrest, conducted searches incident to the arrests, and recovered from Gipson’s pockets a plastic straw, a pipe, and some methamphetamine.
B.
On January 31, 2007, Plaintiff-Appellee State of Hawai'i (State) filed a complaint charging Thornton with Count I, Promoting a Dangerous Drug in the Third Degree in violation of HRS § 712-1243 (Supp.2008); Count II, Unlawful Use of Drug Paraphernalia in violation of HRS § 329-43.5(a) (1993); and Count III, Unauthorized Possession of Confidential Personal Information in violation of HRS § 708-839.55.
On April 30, 2007, Thornton filed a motion to suppress the wallet and its contents, including the license that was the basis for the Unauthorized-Possession-of-Confidential-Personal-Information charge. Thornton argued, in part, that “written consent to search was given for the limited purpose of having his automobile, contents and bags searched for evidence of firearms and/or ammunition”; “[a]ny other search beyond looking for firearms and/or ammunition exceeded the scope of [Thornton’s] consent”; and “Officer Pi-stor’s action of opening the [wallet] was an intrusive and unconstitutional search” that “exceeded the scope of the given consent.”
In its memorandum in opposition, the State argued that the evidence was recovered pursuant to a valid search because Thornton freely consented to the search of his vehicle, its contents, and bags.
At the November 9, 2007 hearing on Thornton’s motion to suppress, Officer Pistor testified that pursuant to Thornton’s written consent form, he searched Thornton’s “vehicle, the contents within and bags within the vehicle” for “[f]irearms or ammunition.” Officer Pistor recalled that after signing the consent form, Thornton “stated that anything we find in the vehicle is not his.”
Officer Pistor related that after discovering the narcotics and paraphernalia, he found a black “[n]ormal sized wallet three by five” on the driver’s seat which “contained other i.d.’s.” The wallet was lying “dosed on the seat ... flat” and Officer Pistor proceeded to open it up and look inside “[f]or ammunition.”
The following colloquy occurred between defense counsel and Officer Pistor:
[DEFENSE COUNSEL] Q. ... Did you pick [the wallet] up and feel it first, anything like that?
[OFFICER PISTOR] A. No.
Q. You just proceeded to just open it up?
A. Yes.
Q. Okay. And just asking but do you know if that’s the same wallet that [0]ffi-cer Nishimoto saw when he asked [Thornton] to take out his driver’s license? Do you know that?
A. No.
Q. Did you ask [Officer Nishimoto] at any time is this the guy’s wallet you took the i.d. out of?
A. I asked [Thornton] if it was his. He said yes.
Q. You didn’t ask [0]ffieer Nishimoto?
A. No.
Q. You didn’t think there was a gun in there, right?
A. No.
Q. Did you think there was ammunition in there?
A. Possibly.
Q. Did you bother—I mean did it make you nervous that you’re looking for ammunition in something and you’re handling it? Did you kind of feel around first at all?
A. It didn’t make me nervous. I didn’t feel anything.
(Emphases added.)
In addition, Officer Nishimoto testified that although he did not participate in the search of Thornton’s car, he saw the wallet after the search and it was “the same wallet that [Thornton] took his i.d. out of.”
The circuit court orally denied Thornton’s motion to suppress evidence and explained, as to the scope of the search, as follows:
And, while a wallet certainly couldn’t contain a firearm, it—it could contain a bullet, it could contain a round and it does harpen [sic] the fact there was a movie a few years ago called Man on Fire where staring [sic] Denzel Washington where I believe he tried to commit suicide and the gun didn’t fire so he put the bullet away in his wallet and later gave it to the man of the house who had arranged his own son’s kidnapping and that guy used it to shoot himself. So, as an example, we know how small wallets are, we know bullets certainly are a lot smaller. I don’t know how many bullets could be in a wallet. Certainly, could find one or more in a typical wallet. And, so, I think that the search as conducted was proper in all respects and does not constitute an unreasonable search based on the consent that was given.
So, the motion to suppress is denied.
On November 28, 2007, the circuit court filed its “Findings of Fact, Conclusions of Law, and Order Denying [Thornton’s] Motion to Suppress Evidence[,]” which stated, in relevant part, as follows:
FINDINGS OF FACT
5. Due to [Thornton’s] behavior and the fact that [Thornton] was wearing a bullet proof vest, Officer Pistor had a suspicion that a firearm or ammunition could be within the vehicle. Officer Pistor then requested [Thornton’s] permission to search the vehicle for any firearms or ammunition.
6. Officer Pistor utilized the HPD-393, WRITTEN CONSENT TO SEARCH, form to advise [Thornton] of the parameters of the search and of his constitutional rights regarding the consent to search.
7. After reviewing the form, [Thornton] signed the form and indicated that he understood his rights, waived those rights and voluntarily consented to the search of his vehicle, contents and bags.
8. When Officer Pistor conducted a search of the vehicle, the following items were located.
a. A plastic baggy containing a white crystal substance that resembled methamphetamine was located in between the driver side door and seat.
b. A plastic container was located under the front passenger seat. Within the container was a plastic baggy with a white crystal substance that resembled meth amphetamine.
c. A black wallet was located on the driver’s seat. Inside of the wallet there was a drivers license for a male [other than Thornton].
CONCLUSIONS OF LAW
1. Officer Nishimoto stopped [Thornton] for a motor vehicle tax citation. That initial stop was valid and based on probable cause.
2. A search conducted pursuant to a voluntary and uncoerced consent by the person whose property is being searched is one of the exceptions to the warrant requirement, and is not constitutionally proscribed. State v. Patterson, 58 Haw. 462, 571 P.2d 745 (1977); State v. Pau‘u, 72 Haw. 505, 824 P.2d 833 (1992).
3. “Consent” in the constitutional sense means more than the absence of an objection on the part of the person to be searched; it must be shown that such consent was freely and voluntarily given. State v. Bonnell, 75 Haw. 124, 856 P.2d 1265 (1993). Whether consent to search has been given voluntarily is a question of fact to be determined by the trial court from the “totality of all the circumstances.” Patterson, 58 Haw. at 468, 571 P.2d 745.
4. Based on the totality of circumstances, [Thornton’s] consent was given knowingly and voluntarily. [Thornton] was not under the influence, as indicated by the fact that he passed the field sobriety test. [Thornton] was coherent to time and place. Prior to giving his consent, [Thornton] was fully warned, both verbally and in writing, of his rights. Lastly, there was no evidence of coercion, fraud, or trickery to get [Thornton] to waive his rights.
5. The items that were located were within the scope of the consent to search.
6. The container that was located and opened was big enough to contain a small firearm and ammunition.
7. The wallet that was located and opened could not contain a firearm, however it could contain a round or more of ammunition.
8. The search as it was conducted was proper in all respects based on the consent that was voluntarily given by [Thornton].
(Bolded emphases added.)
C.
At trial, Thornton admitted that he had signed the consent-to-search-for-ammunition- and-flrearms form, knew that he did not have to sign the form, and was not intimidated into signing it. When asked why he let the police search his ear when he did not have to, Thornton responded: “As far as I knew, there were no ammunition or firearms in my ear and nothing else illegal that I knew of.” Thornton said that he did not have anything in the car to hide. Thornton also admitted that his possession of the license was unauthorized, but he denied any connection to the drugs and paraphernalia found in the car. The jury acquitted Thornton of Counts I and II, the drug-related charges, but convicted him of Count III, Unauthorized Possession of Confidential Personal Information. This appeal followed.
DISCUSSION
A.
The circuit court’s ruling on a motion to suppress is reviewed de novo to determine whether, as a matter of law, the ruling was “right” or “wrong.”
However, the circuit court’s findings of fact, upon which the court’s ruling rests, are reviewed to determine whether they are clearly erroneous. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.
State v. Silva, 91 Hawai'i 111, 115, 979 P.2d 1137, 1141 (App.1999) (citations and internal quotation marks omitted). In addition,
[t]he proponent of the motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and article I, section 7 of the Hawai'i Constitution.
State v. Spillner, 116 Hawai'i 351, 357, 173 P.3d 498, 504 (2007).
“[Warrantless searches are invalid unless they fall within narrowly drawn exceptions” such as “[a] search conducted pursuant to voluntary and uncoerced consent by the person being searched!.]” State v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985). Consensual searches are approved “because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “The scope of a search is generally defined by its expressed object.” Id. at 251, 111 S.Ct. 1801. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id.
A consensual search is confined to the terms of its authorization. The scope of the actual consent restricts the permissible boundaries of a search in the same manner as the specifications in a warrant. If the government does not conform to the limitations placed upon the right granted to search, the search is impermissible. In justifying a consensual search, the government bears the burden of establishing that the search was conducted within the purview of the consent received.
When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.
United States v. Strickland, 902 F.2d 937, 941 (11th Cir.1990) (citations omitted). See also State v. Nabarro, 55 Haw. 583, 583-87, 525 P.2d 573, 574-75 (1974) (holding that while a lawfully issued warrant to search premises authorizes the officers executing it to “search, in a reasonable manner, whatever spots within the described premises their professional experience indicates may be used as a cache for the items named in the warranty” such a warrant “does not by its own force permit a search of the persons— residents or visitors—who chance to be [at the premises] at the time the warrant is executed” or belongings of a non-resident visitor present on the premises) (internal quotation mark omitted).
Hence, “[c]onsent to search a general area will not validate the search of a specific area or item if that specific area or item is in fact surrounded by an independent privacy interest.” Mahone, 67 Haw. at 648, 701 P.2d at 174. Moreover, “Speculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures.” State v. Reed, 70 Haw. 107, 114, 762 P.2d 803, 807 (1988); State v. Kaluna, 55 Haw. 361, 371, 520 P.2d 51, 59 (1974) (suppressing evidence of narcotics wrapped in a tissue and found during a pre-incarceration search because (1) “[f]rom an objective standpoint, it was unlikely that the small packet secreted a weapon which the defendant could have used to escape or harm her captors[,]” and “even if it had contained a small weapon, such as a razor blade, once the packet was in [the police matron’s] possession there was no further danger that the defendant could use it”; and (2) the defendant was originally arrested for attempted robbery and the police matron “had neither a belief that [the tissue] contained instrumentalities [of the crime of attempted robbery] nor any grounds to suspect that it contained drugs. Her sole purpose in unfolding the tissue was to satisfy her curiosity — a purpose which is clearly improper.”).
A search for firearms and ammunition pursuant to consent exceeds the scope of consent when either the characteristics of the area to be searched, or the investigating officer’s observations, do not reasonably suggest the presence of firearms or ammunition. See, e.g., State v. Younger, 305 N.J.Super. 250, 702 A.2d 477, 479-80 (Ct.App.Div.1997) (opening a closed, pliable, three-ineh-by-two-ineh vinyl change purse which had an identity card sticking out and contained heroin exceeded the scope of a consent to search for a handgun inasmuch as the police officer “conceded that the purse obviously could not have contained a gun and that anything sharp or hard that might have been inside it could have been felt without opening it” and the police officer also admitted that he had searched the purse for identification and ammunition); Foster v. State, 285 Ga.App. 441, 646 S.E.2d 302, 306 (2007) (holding that the defendant’s consent to a “search of his pockets for weapons cannot be interpreted as having extended so far as to have authorized [the police officer] to remove the contents of [the defendant’s] pockets unless he came upon something that felt like a weapon or an object immediately identifiable as contraband. According to [the police officer], he felt neither.”). See also State v. Barnes, 58 Haw. 333, 339, 568 P.2d 1207, 1212 (1977) (“There was nothing in the conduct of the defendant, or in the nature and appearance of the brown paper bag, that could have led the officer reasonably to believe that it contained a weapon.... [I]n no way could the arresting officer have known of the marijuana in the brown paper bag without first seizing it and examining its contents.”); State v. Huether, 453 N.W.2d 778, 782 (N.D.1990) (concluding that although the driver consented to a search for open containers of alcohol, the small paper bag tucked under the car seat “had neither the weight nor the shape of an alcoholic beverage container” and it “became obvious” that the bag could not have held a bottle or can “once the officer pulled it from under the seat”).
“Assuming an unreasonable search or seizure, any evidence derived thei’efrom is inadmissible in a criminal prosecution, and a conviction obtained thereby must be reversed.” State v. Wallace, 80 Hawai'i 382, 393, 910 P.2d 695, 706 (1996) (internal quotation marks and ellipsis omitted).
Here, the circuit court concluded that the search that resulted in the discovery of the license was within the scope of consent because “[t]he wallet that was located and opened could not contain a firearm, however it could contain a round or more of ammunition.” (Emphasis added.) While we agree that a wallet is a plausible, though uncommon, location to hide ammunition, we nonetheless conclude that the circuit court erred in denying the motion to suppress the license.
As stated on the HPD consent form, the search of Thornton’s automobile and its contents was expressly confined to evidence of “Firearms, Ammunition.” In his testimony at the suppression hearing, Officer Pistor acknowledged that the wallet was lying “closed on the seat[,]” and he searched the wallet “[f]or ammunition.” However, Officer Pistor further testified that he was not nervous in handling a wallet that may “[possibly” contain ammunition because he could not “feel anything.” Additionally, while Officer Pistor searched the wallet, he was not in any danger since both Thornton and Gipson were outside the car.
Under the facts of this case, Officer Pi-stor’s observations did not reasonably suggest the presence of ammunition inside the wallet. Thus, the continued search that uncovered the license was objectively unreasonable and exceeded the scope of Thornton’s consent. Furthermore, even if Thornton’s consent could reasonably be construed as authorizing a search of the wallet, there was no evidence that when Officer Pistor opened the wallet and found no ammunition, the license was in plain view.
CONCLUSION
In light of the foregoing discussion, we reverse the August 25, 2008 judgment of conviction and sentence.
. The Honorable Steven S. Aim presided.
. HRS § 708-839.55 states currently, as it did at the time of the alleged offense, as follows:
Unauthorized possession of confidential personal information. (1) A person commits the offense of unauthorized possession of confidential personal information if that person intentionally or knowingly possesses, without authorization, any confidential personal information of another in any form, including but not limited to mail, physical documents, identification cards, or information stored in digital form.
(2) It is an affirmative defense that the person who possessed the confidential personal information of another did so under the reasonable belief that the person in possession was authorized by law or by the consent of the other person to possess the confidential personal information.
(3) Unauthorized possession of confidential personal information is a class C felony.
.Throughout the record on appeal, Officer Pi-stor's last name is spelled "Pistor[,]” with the exception of the November 9, 2007 transcript of proceedings, where his last name is spelled "Pe-stor[.]”
. The record on appeal indicates that aside from Thornton's license, the wallet contained one Hawaii driver's license and three State of Hawaii identification cards belonging to other individuals.
. The current version of HRS § 712-1243 is the same as when Thornton allegedly violated the statute.
.Gipson was named as a co-defendant in the complaint, and he later pled guilty to Count IV— Promoting a Dangerous Drug in the Third Degree in violation of HRS § 712-1243, and Count V—Unlawful Use of Drug Paraphernalia in violation of HRS § 329-43.5(a). |
12314177 | Blaisdell v. State | Blaisdell v. State | 2009-12-29 | 29673 | 473 | 473 | 121 Haw. 473 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Blaisdell v. State | December 29, 2009
29673
Blaisdell v. State | 8 | 52 | Affirmed | |
12313274 | State v. Spencer | State v. Spencer | 2009-07-02 | 29176 | 31 | 31 | 121 Haw. 31 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Spencer | 29176
State v. Spencer | 5 | 32 | Affirmed | |
12313708 | State v. Canencia | State v. Canencia | 2009-09-30 | 29345 | 248 | 248 | 121 Haw. 248 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Canencia | State v. Canencia
29345
09/30/2009 | 7 | 54 | Vacated & remanded | |
12313753 | R.R., In re | In re R.R. | 2009-10-14 | 29683 | 259 | 259 | 121 Haw. 259 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | R.R., In re | R.R., In re
29683
INTERMEDIATE COURT OF APPEALS OF HAWAI'I
October 14, 2009 | 15 | 85 | Affirmed | |
12313608 | State v. Ko | State v. Ko | 2009-09-24 | 29423 | 202 | 202 | 121 Haw. 202 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Ko | State v. Ko
29423 | 5 | 27 | Reversed | |
12313788 | State v. Montanez | State v. Montanez | 2009-10-22 | 28437 | 259 | 259 | 121 Haw. 259 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Montanez | State v. Montanez
28437 | 5 | 33 | Reversed | |
12313513 | STATE of Hawai'i, Plaintiff-Appellee, v. Fredy DOMINGO, Defendant-Appellant | State v. Domingo | 2009-09-11 | No. 29224 | 191 | 195 | 121 Haw. 191 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | FOLEY, Presiding Judge, FUJISE and LEONARD, JJ. | STATE of Hawai'i, Plaintiff-Appellee, v. Fredy DOMINGO, Defendant-Appellant. | 216 P.3d 117
STATE of Hawai'i, Plaintiff-Appellee, v. Fredy DOMINGO, Defendant-Appellant.
No. 29224.
Intermediate Court of Appeals of Hawai'i.
Sept. 11, 2009.
James S. Tabe, Deputy Public Defender, on the briefs, for Defendant-Appellant.
Delanie D. Prescott-Tate, Deputy Prosecuting Attorney, on the briefs, for Plaintiff-Appellee.
FOLEY, Presiding Judge, FUJISE and LEONARD, JJ. | 2383 | 14237 | Opinion of the Court by
LEONARD, J.
Defendant-Appellant Fredy Domingo (Domingo) appeals from the Judgment of Conviction and Probation Sentence entered on June 2, 2008 (Judgment) in the Circuit Court of the First Circuit (Circuit Court).
Domingo entered a plea of no contest to the offense of Accidents Involving Death or Serious Bodily Injury, in violation of Hawaii Revised Statutes (HRS) § 291C-12 (2007). Domingo was sentenced to five years of probation and ordered to pay, inter alia, restitution of $13,225.94.
On appeal, Domingo contends that the Circuit Court erred by requiring that he pay restitution. Domingo also contends that the amount of restitution was unreasonable.
Domingo claims that his conduct, failing to remain at the scene of an accident, failing to give information, and failing to render reasonable assistance, in violation of HRS § 291C-14 (2007), did not cause the decedent’s losses. The State agrees that the decedent in this case is not a victim, as defined in HRS § 706-646(1), and that there is no evidence in the record that the decedent’s death was the result of Domingo’s criminal acts. Thus, Domingo did not cause losses to the decedent, pursuant to HRS § 706-646(2).
Based on the record in this case and applicable authorities, we agree that the Circuit Court erred by requiring Domingo to pay restitution. Therefore, we need not consider whether the amount of restitution was reasonable.
I. BACKGROUND
On November 20, 2007, Domingo was indicted on one count of Accidents Involving Death or Serious Bodily Injury. The State alleged that Domingo was involved in an accident resulting in serious bodily injury or death of Royce Tomlin (Tomlin), failed to immediately stop his vehicle at the scene of the accident, and failed to fulfill the requirements of HRS § 291C-14.
After initially pleading not guilty, on March 10, 2008, Domingo entered a no contest plea. The State stated the factual basis for the no contest plea as follows:
Mr. Uehara: The facts would be as follows: that on February 17th, 2007, the defendant, as well as the decedent, were driving in separate vehicles westbound on H-l. The decedent’s vehicle crossed the line or lane divider and sideswiped the defendant’s car. That caused both cars to—the defendant’s hit the guard rail and his car flipped on its side. The decedent’s car also hit the guard rail and flipped on its roof. The decedent died.
The defendant got out of his car and walked to the side. Witnesses say that he admitted to being the driver of that-his car but then he fled into the bushes and he returned within an hour after a family friend had told him that he had to go back to the scene of the accident.
The decedent as well as the defendant had been drinking.
All of this happened on the island of Oahu, City and County of Honolulu, State of Hawaii.
During a June 2, 2008 hearing on Domingo’s Motion for a Deferred Acceptance of No Contest Plea and Sentencing, Domingo acknowledged that he received an addendum to a pre-sentence report which included a letter from Elaine Tomlin, Tomlin’s wife (Mrs. Tomlin). Mrs. Tomlin requested restitution of $890.56 for airline cost for one, $10,313.85 for funeral expenses, $1,489.13 for a gravestone, and $532.40 for an ambulance fee, for a total of $13,225.94.
During the hearing, the following discussion occurred:
Mr. Uehara: ... Let me cut to the chase, Your Honor. In this particular case, it was an unusual case. It was the decedent who caused the collision and who caused his own death. The decedent was di’iving stupid and he was driving drunk. His blood alcohol level was .23, almost three times the legal limit.
He was speeding along H-l going westbound, weaving in and out of traffic. Just before the collision, the decedent was driving in the middle lane, the defendant was driving in the right lane. The decedent veered into the defendant, sidesweeping the defendant’s driver side, thus causing the collision of both vehicles. The decedent was not wearing a seatbelt. Accordingly, he was ejected from this speeding vehicle and he died of head injuries at the scene.
The defendant understandably got seared, ran away, but then returned to the scene. And the collision as well as the decedent’s death was no fault of his own.
For those reasons, I am not opposing the deferral motion. And for those reasons, I am not asking the Court to order restitution as part of the defendant’s sentencing. And the decedent’s family has the opportunity to file a civil action against the defendant if the family desires to do so. However, under the circumstances of the case, I think the equities lie with the defendant rather than the decedent. Thank you.
The Court: Mr. Rodby?
Mr. Rodby: We join in with Mr. Uehara’s argument. And I just learned today that Mr. Domingo had never been in an auto accident before.
The Circuit Court denied Domingo’s motion and, over Domingo’s objection, ordered him to pay restitution of $13,225.94 because he was “guilty of the offense, there’s a request, it has to be ordered to be paid.”
Domingo timely filed this appeal.
II. STANDARD OF REVIEW
“The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed.” State v. Reis, 115 Hawai'i 79, 83, 165 P.3d 980, 984 (2007) (internal quotation marks and citation omitted).
[W]hile a sentence may be authorized by a constitutionally valid statute, its imposition may be reviewed for plain and manifest abuse of discretion.
Admittedly, the determination of the existence of clear abuse is a matter which is not free from difficulty and each case in which abuse is claimed must be adjudged according to its own peculiar circumstances. Generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.
State v. Kumukau, 71 Haw. 218, 227-28, 787 P.2d 682, 688 (1990).
State v. Gaylord, 78 Hawai'i 127, 144, 890 P.2d 1167, 1184 (1995) (brackets omitted); see State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000).
III. DISCUSSION
The Circuit Court Erred By Ordering Domingo To Pay Restitution
Domingo claims that his misconduct, failing to remain at the scene of an accident, failing to give information, and failing to render reasonable assistance, pursuant to HRS § 291C-14, did not cause Tomlin’s losses.
In State v. Chen, 77 Hawai'i 329, 884 P.2d 392 (App.1994), this court stated:
The purpose of statutes like HRS § 291C-12(a) which require drivers involved in an accident to stop at the scene of the accident, is “to protect those injured ... and [to] facilitate a determination of civil and criminal liability.” Wylie, 797 P.2d at 657. See also State v. Liuafi, 1 Haw.App. 625, 643, 623 P.2d 1271, 1282 (1981) (“duty to render aid is clearly intended to furnish accident victims prompt assistance in order to minimize their injuries”).
77 Hawai'i at 337, 884 P.2d at 400. “Accordingly, criminal liability under HRS § 291C-12(a) does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person.” Id. at 336, 884 P.2d at 399.
However, under HRS § 706-646, a defendant cannot be ordered to pay restitution unless he caused a victim’s losses. Hawaii Revised Statutes § 706-646 states:
§ 706-646 Victim restitution. (1) As used in this section, “victim” includes any of the following:
(a) The direct victim of a crime including a business entity, trust, or governmental entity;
(b) If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351; or
(c)A governmental entity which has reimbursed the victim for losses arising as a result of the crime.
(2) The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim. The court shall order restitution to be paid to the crime victim compensation commission in the event that the victim has been given an award for compensation under chapter 351. If the court orders payment of a fine in addition to restitution or a compensation fee, or both, the payment of restitution and compensation fee shall have priority over the payment of the fine, and payment of restitution shall have priority over payment of a compensation fee.
(3) In ordering restitution, the court shall not consider the defendant’s financial ability to make restitution in determining the amount of restitution to order. The court, however, shall consider the defendant’s financial ability to make restitution for the purpose of establishing the time and manner of payment. The court shall specify the time and manner in which restitution is to be paid. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to:
(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;
(b) Medical expenses; and
(c) Funeral and burial expenses incurred as a result of the crime.
(4) The restitution ordered shall not affect the right of a victim to recover under section 351-33 or in any manner provided by law; provided that any amount of restitution actually recovered by the victim under this section shall be deducted from any award under section 351-33.
(Emphasis added.)
The plain language of HRS § 706-646(2) requires restitution in this case only upon evidence that Domingo’s offense caused Tomlin’s losses.
Absent evidence that Domingo’s conduct caused or aggravated Tomlin’s injuries or caused Tomlin’s death, no causal relationship between Domingo’s criminal act and a victim’s losses is shown and restitution may not be imposed pursuant to HRS § 706-646. See, e.g., Schuette v. State, 822 So.2d 1275, 1281 (Fla.2002) (evidence as to causation between loss and criminal conduct must be shown before restitution may be ordered); State v. Shafer, 144 Idaho 370, 374, 161 P.3d 689, 693 (2007) (restitution may not be imposed where there is no evidence of loss resulting from criminal act); State v. Steinolfson, 483 N.W.2d 182, 183 (N.D.1992) (causal relationship between criminal conduct and damages must be shown to order restitution).
Domingo admitted that he failed to remain at the scene of the accident, failed to provide information, and failed to render reasonable assistance. However, the State asserted that Tomlin, not Domingo, caused the accident and that Tomlin died at the scene of the accident. There is no evidence in the record that Domingo’s criminal misconduct caused Tomlin’s injuries or death. It appears that Tomlin’s vehicle flipped over onto its roof, causing his immediate death upon impact. No nexus between Domingo’s conduct and Tomlin’s injuries and death has been demonstrated. Thus, restitution cannot be imposed pursuant to HRS § 706-646.
IV. CONCLUSION
The Circuit Court’s June 2, 2008 Judgment is affirmed as to the conviction and reversed as to the restitution ordered in conjunction with Domingo’s sentence.
. The Honorable Steven S. Aim presided.
. HRS § 291C-12 provides, in relevant part:
§ 291C-12 Accidents involving death or serious bodily injury, (a) The driver of any vehicle involved in an accident resulting in serious bodily injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 291 C-14. Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person who violates subsection (a) shall be guilty of a class B felony.
. HRS § 291 C-14 provides, in relevant part:
§ 291 C-14 Duty to give information and render aid. (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give the driver's name, address, and the registration number of the vehicle the driver is driving, and shall upon request and if available exhibit the driver's license or permit to drive to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give such information and upon request exhibit such license or permit to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary, or if such carrying is requested by the injured person; provided that if the vehicle involved in the accident is a bicycle, the driver of the bicycle need not exhibit a license or permit to drive.
(b) In the event that none of the persons specified is in condition to receive the information to which they otherwise would be entitled under subsection (a), and no police officer is present, the driver of any vehicle involved in the accident after fulfilling all other requirements of section 291C—12, 291C—12.5, or 291C-12.6, and subsection (a) of this section, insofar as possible on the driver’s part to be performed, shall forthwith report the accident to the nearest police officer and submit thereto the information specified in subsection (a). |
12313476 | Hana Koali Mesa LLC v. Kupau | Hana Koali Mesa LLC v. Kupau | 2009-08-28 | 29304 | 178 | 178 | 121 Haw. 178 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Hana Koali Mesa LLC v. Kupau | Hana Koali Mesa LLC v. Kupau
29304
August 28, 2009 | 11 | 60 | Affirmed | |
12313472 | Stomber v. Stomber | Stomber v. Stomber | 2009-08-27 | 29064 | 178 | 178 | 121 Haw. 178 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Stomber v. Stomber | Stomber v. Stomber
29064 | 7 | 46 | Vacated and Remanded | |
12313468 | State v. Jaquias | State v. Jaquias | 2009-08-27 | 29321 | 178 | 178 | 121 Haw. 178 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | State v. Jaquias | State v. Jaquias
29321
August 27, 2009 | 10 | 60 | Vacated and Remanded | |
12313460 | Fagaragan v. State | Fagaragan v. State | 2009-08-26 | 29281 | 178 | 178 | 121 Haw. 178 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | Fagaragan v. State | Fagaragan v. State
29281
August 26, 2009 | 8 | 50 | Affirmed | |
12313421 | Waldorf Roy WILSON, II, Plaintiff-Appellant v. George FREITAS; William Ching; Roy Asher; Marvin Rivera; Samuel Sheldon; County of Kauai; Joan Conrow; Honolulu Publishing Co., Ltd., nka Pacificbasin Communications, LLC dba Honolulu Magazine; Dennis Wilken; Kauai Publishing Co. dba The Garden Island; John Does 1-50; Jane Does 1-50; Doe Partnerships, Corporation, or other Entities 1-50; Doe Governmental Entities 1-50, Defendants-Appellees | Wilson v. Freitas | 2009-06-30 | Nos. 27747, 27856 | 120 | 135 | 121 Haw. 120 | 121 | Hawaii Reports | Hawaii Intermediate Court of Appeals | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | WATANABE, Acting Chief Judge, NAKAMURA, and FUJISE, JJ. | Waldorf Roy WILSON, II, Plaintiff-Appellant v. George FREITAS; William Ching; Roy Asher; Marvin Rivera; Samuel Sheldon; County of Kauai; Joan Conrow; Honolulu Publishing Co., Ltd., nka Pacificba-sin Communications, LLC dba Honolulu Magazine; Dennis Wilken; Kauai Publishing Co. dba The Garden Island; John Does 1-50; Jane Does 1-50; Doe Partnerships, Corporation, or other Entities 1-50; Doe Governmental Entities 1-50, Defendants-Appellees. | 214 P.3d 1110
Waldorf Roy WILSON, II, Plaintiff-Appellant v. George FREITAS; William Ching; Roy Asher; Marvin Rivera; Samuel Sheldon; County of Kauai; Joan Conrow; Honolulu Publishing Co., Ltd., nka Pacificba-sin Communications, LLC dba Honolulu Magazine; Dennis Wilken; Kauai Publishing Co. dba The Garden Island; John Does 1-50; Jane Does 1-50; Doe Partnerships, Corporation, or other Entities 1-50; Doe Governmental Entities 1-50, Defendants-Appellees.
Nos. 27747, 27856.
Intermediate Court of Appeals of Hawai'i.
June 30, 2009.
As Amended Aug. 4, 2009.
Richard Naiwieha Wurdeman, Hilo, on the briefs, for Plaintiff-Appellant.
John T. Komeiji, Karen Y. Arikawa (Wa-tanabe Ing & Komeiji LLP), Honolulu, on the briefs, for Defendant-Appellee.
Margaret H. Sueoka, Deputy County Attorney, on the briefs, for Defendant-Appellee William Ching.
Jeffrey S. Portnoy, Peter W. Olson (Cades Sehutte LLP), Honolulu, on the briefs, for Defendants-Appellees Dennis Wilken and Kauai Publishing Co. dba The Garden Island, Defendants-Appellees Joan Conrow and Honolulu Publishing Co., Ltd., dba Honolulu Magazine.
Roger R. Myers, Katherine A Keating (Holme Roberts & Owen LLP), on the briefs, for Defendants-Appellees Dennis Wilken and Kauai Publishing Co. dba The Garden Island.
David J. Minkin, Becky T. Chestnut, Kara M.L. Young (McCorriston Miller Mukai Mac-Kinnon LLP), Honolulu, on the briefs, for Defendants-Appellees County of Kauai, Roy Asher, Samuel Sheldon and Marvin Rivera.
WATANABE, Acting Chief Judge, NAKAMURA, and FUJISE, JJ. | 7999 | 49685 | Opinion of the Court by
NAKAMURA, J.
This case arises out of the investigation by the Kaua'i Police Department (KPD) of two murders and an attempted murder, each involving sexual assault and stabbing of a woman, that were committed in separate incidents in 2000 on Kaua'i. In 2002, Plaintiff-Appellant Waldorf Roy Wilson, II, (Wilson) sued the Kaua'i Police Chief, certain Kaua'i police officers, and the County of Kaua'i (County), claiming that they had engaged in misconduct while investigating him for these crimes. Wilson also sued the authors and publishers of articles appearing in the Honolulu Magazine and The Garden Island newspaper, claiming, among other things, that the articles had defamed him.
During the times relevant to this case, George Freitas (Freitas) was the Kaua'i Police Chief and William Ching (Ching), Roy Asher (Asher), Marvin Rivera (Rivera), and Samuel Sheldon (Sheldon) were members of the KPD. All were employees of the County. Joan Conrow (Conrow) was the author of an article published in the August 2001 edition of Honolulu Magazine entitled, “The Killing Year.” Dennis Wilken (Wilken) was the author of an article appearing in the January 28, 2002, edition of The Garden Island newspaper under the headline, “Suspected killer has parole hearing today.”
On September 11, 2002, Wilson filed a complaint in the Circuit Court of the Fifth Circuit (circuit court) against Defendants- Appellees Freitas; Ching; Asher; Rivera; Sheldon; the County; Conrow; Honolulu Publishing Co., Ltd., nka Pacific Basin Communications, LLC, dba Honolulu Magazine (Honolulu Publishing); Wilken; and Kauai Publishing Co., dba The Garden Island (Kauai Publishing). The complaint alleged numerous causes of action, including defamation; slander; slander per se; libel; libel per se; invasion of privacy; intentional, deliberate, knowing, and/or negligent infliction of emotional distress; punitive conduct; violations of Wilson’s constitutional rights; failure to properly train, supervise, control, and/or discipline employees; trespass; and unlawful imprisonment. On March 2, 2006, the circuit court entered Judgment in favor of Defendants and against Wilson with respect to all claims asserted in the action. It is from this Judgment that Wilson appeals.
On appeal, Wilson asserts that the circuit court erred by: 1) granting Honolulu Publishing and Conrow’s motion for summary judgment; 2) granting Kauai Publishing and Wilken’s motion for summary judgment; and 3) dismissing Wilson’s complaint against the County Defendants for failure to prosecute. For the reasons discussed below, we affirm.
I. STATEMENT OF FACTS
Wilson was convicted of rape and kidnapping in 1983 and sentenced to prison. In January 1999, he was released on parole and resided in Honolulu. In about January of 2000, Wilson relocated to Kaua'i.
During the spring and summer of 2000 on Kaua'i, two women were murdered and a third brutally assaulted, in what appeared to be connected attacks. All three women were sexually assaulted and stabbed. On April 7, 2000, the body of a woman who had been raped, severely beaten, and stabbed was found near a Kaua'i state park. Several weeks later, on May 23, 2000, a second woman was raped, beaten, and stabbed by a man. This victim survived the attack when the assailant’s knife broke, apparently as the result of hitting the victim’s breastbone, and she later provided the police with a description of the assailant. On August 30, 2000, the body of a third woman was found on a Kaua'i beach. She too had been sexually assaulted and stabbed.
The three attacks were extensively covered on Kaua'i as well as statewide by the print and broadcast media. All three victims were petite, middle-aged, Caucasian women, and the similarities between the attacks led to speculation that the crimes may have been perpetrated by one man—a serial killer.
On September 12 and 13, 2000, KHNL News 8 reported in television broadcasts that Kaua'i police questioned Wilson in connection with their investigation into the three attacks. KHNL News 8 broadcasted Wilson’s picture next to a composite sketch prepared by the police based on the surviving victim’s description of her attacker. The news broadcasts reported that the “police say Wilson bears a likeness to the sketch prepared with information given [by the surviving victim].” The news broadcasts further reported that Wilson had been convicted of kidnapping and raping a woman in Kaneohe in 1982; that he was released from prison in January 1999 and moved to Kaua'i one year later; that the police administered “a lie detector test” to Wilson; that after the police interview, Wilson’s parole was “revoked” for parole violations unrelated to the three attacks; and that he had not been arrested in connection with the thi'ee attacks.
In the August 2001 issue of Honolulu Magazine, Conrow wrote a story entitled “The Killing Year,” which discussed the spate of violent crimes committed on Kaua'i in 2000— six homicides and two near homicides, includ ing the attacks on the three women. The article detailed the efforts of the KPD to track and find an apparent serial killer who police suspected was responsible for the attacks on the three women. It described the pressure placed on the police to solve these crimes; the fear the three attacks had created in the community; public speculation that the police had botched the investigation; the belief of the police that people in the community had information about the crimes but had refused to come forward; the inconclusive results of the DNA testing; and the frustration of the police over their inability to resolve the cases and bring charges.
When discussing potential suspects for the attacks, the article referred to information obtained through Police Chief Freitas and stated as follows:
[Chief Freitas] won’t say much about the short list of suspects the department has been dogging since the get-go, a list “of people who may have been in the general area at the general time, may have been doing suspicious things, may have known the victims, ears seen in the area. There’s a handful we’ve been working all along.”
Freitas also won’t reveal if that list includes Waldorf “Wally” A. Wilson, a convicted rapist from 0‘ahu who was returned to prison late last year after being picked up on Kaua'i for a parole violation. Honolulu’s News 8 identified Wilson as the suspected killer, a report quickly denounced by police but widely accepted as fact on the Garden Island.
The last-quoted paragraph is the only mention of Wilson in the seven-page article.
On January 28, 2002, an article written by Wilken under the headline, “Suspected killer has parole hearing today,” was published in The Garden Island newspaper. Although the article did not refer to Wilson by name, it provided details, such as a 42-year-old man previously convicted of rape with a parole hearing scheduled that day, which identified Wilson as the subject of the article. The article discussed Wilson’s upcoming parole hearing and noted that he “is in the spotlight because many high-ranking Kaua'i police and detectives consider him a serious suspect in the three brutal rape-stabbings which resulted in two deaths and a near-death on West Kaua'i during the spring and summer of 2000.” The article stated that while no one in authority at the KPD had ever confirmed Wilson’s status as a serious suspect in an on-the-record statement, enough reporters and citizens had been told about “this suspect” that an anonymous flyer was circulated warning of Wilson’s potential release.
The article went on to note that Wilson “was identified on an Oahu television newscast in September of 2000, when he was first brought in for questioning as a primary suspect in the killings;” local police and prosecutors could never agree on whether there was sufficient evidence to charge Wilson; the surviving victim failed to identify Wilson as her assailant in a police lineup held in late 2000; Wilson was sent back to prison in the fall of 2000 on a parole violation; and the murders have stopped since Wilson was re-ineareerat-ed for the parole violation. The article concluded with the following passage:
The description and a composite drawing released by KPD after the second attack’s survivor was interviewed, identified the assailant as a stocky, local looking man with a dark complexion.
The convicted sex offender whose parole hearing is today fits that general description.
II. PROCEDURAL HISTORY
On September 11, 2002, Wilson filed his complaint. In the “Factual Allegations” section of the complaint, Wilson described the attacks on the three women and denied that he was responsible or involved in any way. Wilson’s complaint contained the following additional pertinent factual allegations:
1. KPD Lieutenant Ching and other KPD Defendants investigated Wilson by placing him under surveillance and coercing him to undergo a polygraph examination.
2. Ching pressured the Hawai'i Paroling Authority (HPA) to hold Wilson on “very technical parole violations.” Ching “believed [Wilson] to be the prime suspect in the [three] attacks[,] even though no competent evidence linked [Wilson] to any of the attacks.” Ching and other KPD Defendants informed various media sources that they believed that Wilson was responsible for the attacks and was the “Kauai serial killer.”
3. DNA samples taken from the victims of the attacks were compared with samples taken from Wilson and “the results proved to be at minimum inconclusive, but more likely clearly not a match, thus exonerating [Wilson].”
4. In late 2000, Wilson was subjected to a line-up and the surviving victim did not identify Wilson as her attacker.
5. Despite this exculpatory evidence, the KPD and the KPD Defendants continue to provide defamatory information about Wilson to various media sources and the HPA in an attempt to pressure the HPA to keep Wilson incarcerated. They have also attempted to destroy Wilson’s reputation and liberty and to invade his privacy.
6. Based on information provided by some or all of the KPD Defendants, KHNL News 8 televised stories on September 12-13, 2000, which indicated that Wilson “was the subject of the police probe” relating to the three attacks and which “showed a picture of [Wilson] and specifically named him as the suspect in the attacks.” “[S]ince this first publication by way of television, various other media sources have referenced [Wilson].”
7. In an article published in the August 2001 edition of Honolulu Magazine,
the author stated in relevant part, that “Honolulu’s News 8 identified Wilson [the Plaintiff] as the suspected killer, a report quickly denounced by police but widely accepted as fact on the Garden Island.” That this unfounded assertion of an acceptance of fact on Kauai was clearly defamatory and otherwise tortious.
(Brackets in original.)
8. In an article appearing in The Garden Island newspaper on January 28, 2002, after making references clearly identifying Wilson as the focus of the article,
the author concluded that “the convicted sex offender whose parole hearing is today fits that general description,” obviously expressing the author’s conclusion that the Plaintiff is in fact the perpetrator of the attacks and a reasonable person would reach that conclusion after reading said article. Other defamatory comments were also provided as well as tortious acts committed.
On October 14, 2003, Honolulu Publishing and Conrow filed a motion for summary judgment as to all claims asserted against them by Wilson. Honolulu Publishing and Conrow asserted that the challenged Honolulu Magazine article was “a truthful, fair, and accurate report on a matter of public concern” and did not support a claim for defamation, invasion of privacy, or infliction of emotional distress. On January 16, 2004, the circuit court granted this motion for summary judgment.
On April 27, 2004, Kauai Publishing and Wilken filed a motion for summary judgment as to all claims asserted against them, advancing arguments similar to those raised by Honolulu Publishing and Conrow. Kauai Publishing and Wilken additionally argued that Wilson’s claims against them should be dismissed because Wilson was “libel proof,” in that Wilson’s reputation was already so tarnished when the Garden Island newspaper article was published that Wilson’s reputation was not capable of sustaining further harm. On August 16, 2004, the circuit court granted Kauai Publishing and Wilken’s motion for summary judgment.
On November 3, 2005, the County filed a motion to dismiss Wilson’s complaint for failure to prosecute, asserting deliberate delay and actual prejudice. On November 9, 2005, the other County Defendants filed joinders to the County’s motion. On December 20, 2005, the circuit court orally granted the County’s motion and dismissed Wilson’s claims against all the County Defendants. On January 4, 2006, the circuit court filed its findings of fact, conclusions of law, and order granting the County’s motion to dismiss and the join-ders by the other County Defendants.
III. DISCUSSION
A The Circuit Court Did Not Err in Granting the Media Defendants’ Motions for Summary Judgment
1. Applicable Law
a. Summary Judgment
Wilson argues that the circuit court erred in granting the Media Defendants’ motions for summary judgment. We disagree. The standard by which we review a circuit court’s ruling on a motion for summary judgment is well settled:
“We review the circuit court’s grant or denial of summary judgment de novo,” Querubin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005), using the same standard applicable to the circuit court. Iddings v. Mee-Lee, 82 Hawai'i 1, 5, 919 P.2d 263, 267 (1996). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hawai'i Rules of Civil Procedure (HRCP) Rule 56(c).
Once the moving party has satisfied its initial burden of showing the absence of a genuine issue of material fact and its entitlement to a judgment as a matter of law, the opposing party “may not rest upon the mere allegations or denials of [the opposing party’s] pleading” but must come forward, through affidavit or other evidence, with “specific facts showing that there is a genuine issue for trial.” HRCP Rule 56(e). If the opposing party fails to respond in this fashion, the moving party is entitled to summary judgment as a matter of law. Hall v. State, 7 Haw.App. 274, 284, 756 P.2d 1048, 1055 (1988); see also HRCP 56(e).
Wittig v. Allianz, A.G., 112 Hawai'i 195, 200, 145 P.3d 738, 743 (App.2006).
A summary judgment motion challenges the very existence or legal sufficiency of the claim or defense to which it is addressed. In effect the moving party takes the position that he is entitled to prevail because his opponent has no valid claim for relief or defense to the action, as the case may be. He thus has the burden of demonstrating that there is no genuine issue as to any material fact relative to the claim or defense and he is entitled to judgment as a matter of law.
First Hawaiian Bank v. Weeks, 70 Haw. 392, 396, 772 P.2d 1187, 1190 (1989) (quotation marks, ellipsis points, and citations omitted). Where the party defending the action (who does not have the burden of proof) moves for summary judgment,
[h]e may discharge his burden by demonstrating that if the case went to trial there would be no competent evidence to support a judgment for his opponent. For if no evidence could be mustered to sustain the nonmoving party’s position, a trial would be useless.
Id. at 396-97, 772 P.2d at 1190. (quotation marks, ellipsis points, brackets, and citations omitted).
In construing Federal Rules of Civil Procedure (FRCP) Rule 56(e), on which Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) is modeled, the United States Supreme Court has stated:
In our view, the plain language of [FRCP] Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation marks omitted).
“A party opposing a motion for summary judgment cannot discharge his or her burden by alleging conclusions, ‘nor is [that party] entitled to a trial on the basis of a hope that [he or she] can produce some evidence at that time.’” Henderson v. Prof'l Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2727 (1983)).
b. Defamation
A plaintiff must establish the following four elements to sustain a claim for defamation:
a) a false and defamatory statement concerning another;
b) an unprivileged publication to a third party;
c) fault amounting at least to negligence on the part of the publisher [actual malice where the plaintiff is a public figure]; [ ] and
d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Gold v. Harrison, 88 Hawai'i 94, 100, 962 P.2d 353, 359 (1998) (brackets in original except for those surrounding the footnote) (quoting Dunlea v. Dappen, 83 Hawai'i 28, 36, 924 P.2d 196, 204 (1996)).
“ ‘[T]ruth is an absolute defense’ to defamation.” Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., 100 Hawai'i 149, 173, 58 P.3d 1196, 1220 (2002) (citation omitted). The literal truth of every word or detail of the challenged statement is not required; the statement need only be substantially true. Kohn v. West Hawaii Today, Inc., 65 Haw. 584, 590, 656 P.2d 79, 83 (1982) (“[I]t is sufficient if the substance, the gist, the sting, of the matter is true.”); Basilius v. Honolulu Publ’g Co., 711-F.Supp. 548, 551 (D.Haw.1989).
Where the publication at issue involves a matter of public concern, the plaintiff bears the burden of proving falsity when suing a media defendant. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). In Hepps, the United States Supreme Court stated, “To ensure that true speech on matters of public concern is not deterred, we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.” Id. The Court noted that placing “the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result.” Id. at 777, 106 S.Ct. 1558. To avoid this “chilling” effect, the Court held that “a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Id. A challenged statement “is not considered false unless ‘it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).
Statements of opinions are not automatically immune from defamation actions. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17-22, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). However, “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Id. at 20, 110 S.Ct. 2695. Thus, a threshold question in a defamation suit is “whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact.” Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.1990) (quotation marks, citation, and brackets omitted). The Hawai'i Supreme Court has adopted the three-part test set forth by the Ninth Circuit in Unelko for answering this threshold question and determining whether a challenged statement can support a defamation claim. Gold, 88 Hawai'i at 101, 962 P.2d at 360. Under the three-part test, the court analyzes:
(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression; and (3) whether the statement in question is susceptible of being proved true or false.
Id. (brackets and emphasis in original omitted).
“[S]ummary Judgment is the preferred means of dealing with First Amend ment eases due to the chilling of First Amendment rights inherent in expensive and time-consuming litigation. This is particularly the ease with smaller newspapers, magazines, and television and radio stations.” Ba-silius, 711 F.Supp. at 550 (citations omitted).
Summary judgment is proper in a defamation action where the court finds that the challenged statements are “incapable of bearing the defamatory meaning ascribed to [them] by [the plaintiff] as a matter of law.” Fernandes v. Tenbruggencate, 65 Haw. 226, 228, 649 P.2d 1144, 1147 (1982). In a defamation action based on a published article, the words and phrases of the article cannot be viewed in isolation or taken out of context. See id. at 230, 649 P.2d at 1148. The entire article must be considered as a whole in order to determine the sense in which the article would rationally be understood by its readers. Id. “[T]he law does not dwell on isolated passages, but judges of the publication as a whole.” Id. (internal quotation marks and citation omitted).
2. The Honolulu Magazine Article
a. Defamation Claim
Wilson does not dispute that certain members of the KPD considered him to be “the prime suspect” in the three attacks and had communicated this view to media sources. Nor does he dispute that the KHNL News 8 broadcasts in September 2000 could fairly be characterized as identifying him as a suspect in the police investigation regarding the attacks. Indeed, Wilson alleged as much in the factual allegations of his complaint.
Instead, Wilson claims that the Honolulu Magazine article was defamatory because the author went beyond identifying Wilson as a suspect and accused Wilson of actually being, or very likely being, the “Kaua'i serial killer.” In support of his claim, Wilson focuses on a short passage in the lengthy article that states: “Honolulu’s News 8 identified Wilson as the suspected killer, a report quickly denounced by police but widely accepted as fact on the Garden Island.” Wilson’s claim that the Honolulu Magazine article was defamatory is without merit.
When the article is considered as a whole, we conclude that the challenged statements, as a matter of law, are “incapable of bearing the defamatory meaning ascribed to [them]” by Wilson. Fernandes, 65 Haw. at 228, 649 P.2d at 1147. The article did not state or infer that Wilson was in fact the Kaua'i serial killer or that he was very likely the Kaua'i serial killer. The plain meaning of the article is that Wilson was considered a suspect in the attacks, a circumstance that Wilson readily concedes. The article noted that Chief Freitas indicated that there was a handful of suspects; that the crimes remained unsolved; that DNA testing was inconclusive; and that the police were frustrated by the failure of people in the community to come forward with information. We conclude that the article could not rationally be understood as the author’s factual assertion that Wilson was the Kaua'i serial killer or that he was very likely the Kaua'i serial killer.
We also reject Wilson’s claim that he was defamed by the article’s statement that it was “widely accepted as fact” on Kaua'i that he was the suspected serial killer. The “widely accepted” characterization was a statement of the author’s opinion that was not susceptible of being proved true or false. See Gold, 88 Hawai'i at 101, 962 P.2d at 360. Moreover, assuming arguendo that this characterization was an assertion of a provable fact, Wilson failed to respond to the summary judgment motion by demonstrating that he could meet his burden of proving through competent evidence that the characterization was false. Accordingly, the circuit court properly granted summary judgment in favor of Conrow, the article’s author, and Honolulu Publishing on Wilson’s defamation claim.
b. Invasion of Privacy Claims
Wilson argues that the circuit court erred in granting summary judgment in favor of Conrow and Honolulu Publishing on Wilson’s invasion-of-privaey claims for 1) publicity that unreasonably put him a false light and 2) unreasonable publicity given to his private life. We disagree.
The false-light tort is defined in the Restatement (Second) of Torts as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement (Second) of Torts § 652E (1977) (cited in Chung v. McCabe Hamilton & Renny Co., 109 Hawai'i 520, 534 n. 18, 128 P.3d 833, 847 n. 18 (2006)).
Although false-light and defamation claims are not identical, there is a substantial overlap between the claims. Courts have held that where, as here, a false-light claim is based on the same statements as a defamation claim, the false-light claim must be dismissed if the defamation claim is dismissed. Gold, 88 Hawai'i at 103, 962 P.2d at 362 (concluding that because plaintiffs’ defamation claim had failed, their false-lighf/invasion of privacy claim must also fail, as it was a “derivative claim[] based on the [plaintiffs’ claim that [the defendant’s statement] was defamatory”); McClatchy Newspapers, Inc. v. Superior Court, 189 Cal.App.3d 961, 234 Cal.Rptr. 702, 704 (1987) (“When an action for libel is alleged, a false-light claim based on the same facts ... is superfluous and should be dismissed.”).
We have already concluded that the circuit court properly granted summary judgment in favor of Honolulu Publishing and Conrow on Wilson’s defamation claim. For the same reasons, we conclude that Wil-sons’ false-light claim, which is derivative of his defamation claim, cannot stand.
The circuit court also properly granted summary judgment on Wilson’s claim that the Honolulu Magazine article gave unreasonable publicity to his private life. The Restatement (Second) of Torts defines the unreasonable-publicity tort as follows:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be regarded as highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Restatement (Second) of Torts § 652D (1977) (cited in State of Hawai'i Org. of Police Officers (SHOPO) v. Soc’y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Hawai'i 378, 398, 927 P.2d 386, 406 (1996)).
Wilson cannot satisfy the second element required to prove the unreasonable-publicity tort. Wilson concedes that the Kaua'i serial murder investigation was of legitimate concern to the public, but he claims that identifying Wilson in connection with the investigation was not. We disagree.
The identity of individuals who are questioned by the police regarding unsolved murders or who are suspects in the police investigation of such crimes is a matter of legitimate concern to the public. Wilson had previously been identified on news broadcasts as a convicted sex offender who had moved to Kaua'i a short time before the three attacks and as a person who had been questioned by the police and subjected to a polygraph examination in connection with the police investigation into the attacks.
We conclude that the Honolulu Magazine article’s identification and discussion of Wilson in connection with the police investigation was a matter of legitimate concern to the public. Because Wilson could not meet his burden of proof on the legitimate-public-concern element, the circuit court properly granted summary judgment in favor of Honolulu Publishing and Conrow on Wilson’s unreasonable-publicity claim.
c. Emotional Distress Claims
We reject Wilson’s contention that the circuit court erred in granting summary judgment in favor of Honolulu Publishing and Conrow on his intentional or negligent infliction of emotional distress claims. Wilson does not offer any separate argument with respect to these claims and instead merely incorporates his arguments on the defamation issue and asserts that emotional distress claims apply in invasion of privacy situations.
Wilson’s emotional distress claims are “parasitic” of his defamation claim and must stand or fall with that claim. Basilius, 711 F.Supp. at 552; see Gold, 88 Hawai'i at 103, 962 P.2d at 362; Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal.Rptr. 145, 147 (1983). “[T]o hold otherwise would permit [Wilson] to ‘end run’ the Constitution.” Basilius, 711 F.Supp. at 552. Our conclusion that the circuit court properly granted summary judgment on Wilson’s defamation claim necessarily means that his emotional distress claims were likewise properly dismissed on summary judgment.
3. The Garden Island Newspaper Article
a. Defamation Claim
Wilson contends that the Garden Island newspaper article written by Wilken defamed him because the article conveyed to the reader that Wilson was the Kaua'i serial killer. The article did not identify Wilson by name, but the details provided left no doubt that Wilson was the person discussed in the article. Wilson does not contest the accuracy of the bulk of the article, which noted that he was scheduled for a parole hearing that day; that “many high-ranking Kauai police and detectives consider him a serious suspect” in the three brutal attacks; that he was identified in a television newscast in September of 2000 as a person police had questioned regarding the killings; and that the murders had stopped since he was re-incarcerated on a parole violation.
In support of his defamation claim, Wilson focuses on the last two sentences of the article which state: “The description and a composite drawing released by KPD after the second attack’s survivor was interviewed, identified the assailant as a stocky, local looking man with a dark complexion. The convicted sex offender whose parole hearing is today fits that general description.” We conclude that Wilson’s claim that the article defamed him by asserting that he was the Kaua'i serial killer is without merit.
When the article is considered as a whole, the challenged statements, as a matter of law, are incapable of bearing the meaning ascribed to them by Wilson. Thus, the circuit court properly granted summary judgment in favor of Kauai Publishing and Wilken on Wilson’s defamation claim.
The article specifically reported that local police and prosecutors could never agree on whether there was sufficient evidence to charge Wilson and that the surviving victim failed to identify Wilson as her assailant in a police lineup held in late 2000. The article did not go beyond accurately characterizing Wilson as someone that members of the KPD considered to be a “serious suspect” in the three attacks, something Wilson acknowledged in the factual allegations of his complaint. Accurately identifying someone as a suspect in a criminal investigation does not constitute an accusation of guilt and cannot support a claim for defamation, even if the plaintiff proves he is not guilty. See Basilius, 711 F.Supp. at 551-52 (rejecting argument that a publication’s materially accurate report of murder allegations implied that plaintiff had actually committed the murder); Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 533 N.E.2d 196, 197 (1989) (holding that a newspaper article’s report that the plaintiff had been arrested and charged with assaulting a police officer could not reasonably be construed as accusing the plaintiff of actually committing the assault). A contrary rule would chill the ability of the media to report on criminal investigations and deprive the public of information on legitimate matters of concern.
The author’s reference to Wilson as fitting the “general description” of the perpetrator that was provided by the surviving victim cannot rationally be understood as an assertion that Wilson was, in fact, the serial killer. The description of the assailant attributed to the surviving victim, “a stocky, local looking man with a dark complexion,” was itself nebulous and encompassed characteristics shared by a large number of individuals. Thus, the author’s statement that Wilson fits this general description did not amount to an assertion that Wilson was the guilty party.
b. Invasion of Privacy and Emotional Distress Claims
Wilson contends that the circuit court erred in granting summary judgment in favor of Kauai Publishing and Wilken on Wilson’s false-light, unreasonable-publicity, and emotional distress claims. We reject Wilson’s contentions based on the same analysis we used in upholding the circuit court’s grant of summary judgment on the corresponding claims asserted by Wilson against Honolulu Publishing and Conrow.
B. The Circuit Court Did not Err in Dismissing Wilson’s Claims Against the County Defendants for Failure to Prosecute.
HRCP Rule 41(b) provides that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.” A ease may properly be dismissed for failure to prosecute if there is deliberate delay, conta maeious conduct or actual prejudice. See Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79 Hawai'i 103, 107, 899 P.2d 386, 390 (1995). Dismissal of a complaint is a severe sanction and should only be used in extreme circumstances and where lesser sanctions would not serve the interests of justice. Id.
A plaintiff who brings an action “clearly and unquestionably has the duty to proceed with the cause in a diligent fashion.” Ellis v. Harland Bartholomew & Assoc., 1 Haw.App. 420, 427, 620 P.2d 744, 749 (1980). If it amounts to deliberate delay, “failure to prosecute diligently is sufficient by itself to justify a dismissal[.]” Anderson v. Air West, Inc. 542 F.2d 522, 524 (9th Cir.1976); see Ellis, 1 Haw.App. at 427-28, 620 P.2d at 749. An order granting a motion to dismiss for failure to prosecute is reviewed for abuse of discretion. Hawaii Auto. Retail Gasoline Dealers Ass’n v. Brodie, 2 Haw.App. 99, 100-01, 626 P.2d 1173, 1174 (1981).
1. Procedural History
The procedural history pertinent to the circuit court's dismissal of Wilson’s complaint against the County Defendants is as follows:
On September 11, 2002, Wilson filed his complaint and requested an exemption from the Court Annexed Arbitration Program (CAAP), arguing that the value of his ease exceeded the $150,000 CAAP limit. The arbitration administrator denied Wilson’s request on September 19, 2002, and the circuit court affirmed the administrator’s decision on September 30,2002.
On November 17, 2003, Wilson filed another motion for removal of the case from the CAAP, which was denied by the circuit court on February 25, 2004. Wilson sought discovery of police records relating to the ongoing investigations of the attacks on the three women. By letter dated January 16, 2004, the CAAP arbitrator denied Wilson’s discovery request, ruling that the County and Frei-tas had not waived the “investigative records and law enforcement privilege.” On September 13, 2004, approximately eight months after the CAAP arbitrator had denied Wilson’s discovery request for access to police reports, a teleconference hearing was held before the CAAP arbitrator to further discuss discovery issues. Although a transcript of the teleconference hearing was not included in the record, the County and Wilson agree that Wilson discussed filing an appeal of the CAAP arbitrator’s discovery rulings within a week after the teleconference hearing. No appeal, however, was ever filed by Wilson. In addition, Wilson did not communicate with the County or take any action in the ease for more than thirteen months following the September 13, 2004, teleconference hearing.
On November 3, 2005, the County filed a motion to dismiss Wilson’s complaint for failure to prosecute, asserting deliberate delay and actual prejudice. On November 9, 2005, Freitas, Ching, Asher, Rivera, and Sheldon filed joinders to the County’s motion. Sheldon and Rivera submitted declarations stating that they had been prejudiced by the lawsuit in connection with applications to obtain loan financing for personal and/or family related matters. On November 21, 2005, Wilson filed a third motion to remove the case from the CAAP. On December 20, 2005, the circuit court orally denied Wilson’s motion to remove the case from the CAAP and granted the County’s motion to dismiss.
The circuit court subsequently issued the following pertinent findings of fact and conclusions of law in support of its order granting the County’s motion to dismiss:
FINDINGS OF FACT
1. On September 13, 2004, [Wilson’s] counsel represented to the arbitrator and defendants’ counsel that he would appeal the discovery decisions to the arbitration judge within a week;
2. No appeal of the discovery decisions to the arbitration judge was ever taken by [Wilson];
3. [Wilson], through the inaction of his counsel, did nothing including no communication regarding the case for over one year;
4. [Wilson] sued Defendants Freitas, Ching, Asher, Rivera, and Sheldon, not only in their official capacities as [KPD] officer [sic] but also in their individual capacities;
5. The instant litigation adversely affected the individual [KPD] officers as evidenced by the declarations of Defendants Sheldon and Rivera which were filed on November 9, 2005 wherein they stated that the lawsuit had a “negative effect” on the ability to obtain loan financing for personal matters and/or family related matters or that they have “been prejudiced” because of additional questions regarding the lawsuit when submitting applications to obtain loan financing for personal matters and/or family related matters;
CONCLUSIONS OF LAW
1. [Wilson] deliberately delayed prosecution of his case by failing to appeal the discovery decisions to the arbitration judge for more than one year;
2. [Wilson] deliberately delayed prosecution of his case by failing to take any action in his case for more than one year;
3. All [County] Defendants have suffered actual prejudice because of the lack of any activity including no communication from [Wilson’s] counsel for more than one year, as [Wilson] has failed to timely prosecute his case;
4. The named Defendants, [KPD] officers Freitas, Ching, Asher, Rivera, and Sheldon also suffered actual prejudice as they were also named in the lawsuit in their individual capacities thereby resulting in a negative effect on their ability to obtain re-financing and/or loans over the past three years, as [Wilson] has failed to timely prosecute his ease;
5.In the best interest of justice, dismissal of [Wilson’s] complaint with prejudice is warranted.
2. Deliberate Delay
On appeal, Wilson does not dispute that more than one year had elapsed between the time he indicated he would appeal the arbitrator’s discovery decision and the filing of the County’s motion to dismiss. Nor does he challenge the circuit court’s determination that he did not engage in any communication with the County Defendants or take any action regarding the ease during that period of time.
Instead, Wilson contends that the delay was not solely his fault because he advised the CAAP arbitrator and the County Defendants that any appeal would be filed within seven days, and therefore, County Defendants “acquiesced to any delay after the seven day period had elapsed.” Wilson also claims that the CAAP arbitrator’s discovery rulings were not appealable because Rule 14(A) of the Hawai'i Arbitration Rules gives the CAAP arbitrator sole discretion over the extent to which discovery is allowed. Wilson therefore argues that his only option was to have the case removed from the CAAP. We are not persuaded.
As the plaintiff, it was Wilson’s duty, and not the duty of the County Defendants, to prosecute his action. See S & K Airport Drive-In, Inc. v. Paramount Film Distributing Corp., 58 F.R.D. 4, 7 (E.D.Pa.1973). Even assuming arguendo that a CAAP arbitrator’s discovery rulings are not appealable, Wilson provides no explanation for his failure to communicate with the County Defendants or take any action to move the case forward for more than a year.
Under the circumstances of this ease, we conclude that there was sufficient basis for the circuit court to determine that Wilson had engaged in deliberate delay that justified the dismissal of his complaint against the County Defendants. We hold that the circuit court did not abuse its discretion in dismissing Wilson’s complaint against the County Defendants for failure to prosecute.
IV. CONCLUSION
The March 2, 2006, Judgment of the circuit court is affirmed.
. Rivera’s name was misspelled as "Riveira” in the complaint.
. We will collectively refer to all the Defendants-Appellees as the "Defendants”; Defendants-Ap-pellees Freitas, Ching, Asher, Rivera, Sheldon, and the County as the "County Defendants”; Defendants-Appellees Freitas, Ching, Asher, Rivera, and Sheldon as the "KPD Defendants”; and Defendants-Appellees Conrow, Honolulu Publishing, Wilken, and Kauai Publishing as the “Media Defendants."
.The Honorable George Masuoka presided over the Media Defendants’ motions for summary judgment. The Honorable Kathleen N.A. Watan-abe presided over the proceedings resulting in the dismissal of the County Defendants.
. We do not decide whether Wilson is a public figure or a limited purpose public figure with respect to this case. For purposes of our analysis, we assume that he is a private figure.
. As discussed infra, the Honolulu Magazine article involved speech of legitimate public concern. Thus, Wilson had the burden of proving the falsity of the challenged statements. Hepps, 475 U.S. at 776-77, 106 S.Ct. 1558.
. In Foley, a newspaper article stated that the plaintiff had been arrested "after assaulting a police officer when he arrived on the scene.” 533 N.E.2d at 196. The plaintiff claimed that the above-quoted statement in the article defamed him by falsely asserting that he had committed a crime. Id. After examining the challenged statement in the context of the entire article, the court held, as a matter of law, that the article was not defamatory because a reasonable reader could not conclude that the article was actually accus ing the plaintiff of committing the assault. Id. at 197.
. We conclude that the Garden Island newspaper article, like the Honolulu Magazine article, involved speech of legitimate public concern. We also observe that to the extent the article caused harm to Wilson's reputation, such harm was attributable to the article’s materially accurate report that Wilson was considered to be a suspect in the three attacks by members of the KPD, and not to any accusation in the article that he in fact had committed the attacks.
. A KHNL News 8 broadcast had earlier reported that, according to the police, Wilson bears a likeness to the composite sketch that was prepared with information provided by the surviving victim. The article’s statement that Wilson fits the general description provided by the surviving victim of her attacker therefore basically repeats previously reported information.
. Wilson contends that the assertion that he fits the general description of the perpetrator provided by the surviving victim is false because he is not stocky and has a fair complexion. Kauai Publishing and Wilken respond that the terms "stocky/’ "local looking,” and "dark complexion” are elastic in meaning. They argue that whether Wilson fits the general description of the perpetrator provided by the surviving victim is a subjective conclusion, and not a verifiable fact that can support a defamation claim. In the circuit court, Kauai Publishing and Wilken asked the court to take judicial notice of an exhibit reflecting Wilson’s arrest and conviction record from the Hawai'i Criminal Justice Data Center, which also contained a photograph of Wilson dated 07/05/02 and listed his height as 5'11" and ins weight as 175 pounds. Wilson did not object to this exhibit but the circuit court indicated that it would not take judicial notice of the exhibit. Kauai Publishing and Wilken also submitted an exhibit containing the photographs of Wilson and the composite sketch (based on the surviving victim’s description of her assailant) that were shown during the KHNL News 8 broadcasts. During certain segments of the broadcasts, the composite sketch was shown under the heading "Suspect Description" and was accompanied by text that read, "Local male[,] 6'0’’[,] 200 lbs.[,] [and] Athletic build.”
The description of a person as a stocky, local-looking man with a dark complexion is indistinct and may encompass a wide variation in meaning depending on the observer. Therefore, in many situations, whether a person fits such a general description may not be capable of being proved true or false. See Grillo v. John Alden Life Ins. Co., 939 F.Supp. 685, 688 (D.Minn.1996) (concluding that statements describing the plaintiff as "short and stupid” could not support a defamation claim because they were not susceptible of empirical determination and could not be proved true or false). Similar considerations may apply to whether a person fits the general description of a perpetrator depicted in a composite sketch. In this case, we have already determined that the challenged statements are incapable of bearing the defamatory meaning ascribed to them by Wilson. Thus, we need not address whether Wilson’s defamation claim should be rejected on the alternative ground that the statement that Wilson fits the general description of the perpetrator provided by the surviving victim was a statement that is not susceptible of being proved true or false.
. Because HRCP Rule 41(b) closely parallels FRCP Rule 41(b), the federal courts’ interpretation of FRCP Rule 41(b) may provide useful guidance.
. The County asserts that the CAAP arbitrator invited Wilson to appeal the discovery decision to the circuit court and that Wilson stated he would file an appeal within one week. Wilson claims that he indicated that he would "need to consider some sort of appeal” because the lack of meaningful discovery completely frustrated his ability to proceed with the case and that "if any appeal was taken, it would be done within seven days of the date of the teleconference.”
. We also reject Wilson’s attempt to blame the CAAP arbitrator for failing to reschedule the arbitration hearing after Wilson did not appeal the arbitrator’s discovery rulings. Wilson does not explain why he did not contact the CAAP arbitrator to request that the hearing be rescheduled. See Fidelity Philadelphia Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir.1978) ("It is a well established rule that the duty to move a case is on the plaintiff and not on the defendant or the court.”). |
12313392 | STATE of Hawai'i, Respondent/PlaintiffAppellee v. Melody C. LINE, Petitioner/DefendantAppellant | State v. Line | 2009-08-11 | No. 27850 | 74 | 91 | 121 Haw. 74 | 121 | Hawaii Reports | Supreme Court of the State of Hawaii | Hawaii | 2021-08-10T17:02:37.911483+00:00 | CAP | MOON, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ., and Circuit Judge ALM Assigned Due to a Vacancy. | STATE of Hawai'i, Respondent/Plaintiff-Appellee v. Melody C. LINE, Petitioner/Defendant-Appellant. | 214 P.3d 613
STATE of Hawai'i, Respondent/Plaintiff-Appellee v. Melody C. LINE, Petitioner/Defendant-Appellant.
No. 27850.
Supreme Court of Hawai'i.
Aug. 11, 2009.
Gerald T. Johnson, Wailuku, for petitioner/defendant-appellant.
Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui (Brandon L.K. Pa-redes, Deputy Prosecuting Attorney, County of Maui, on the answering brief) for respondent/plaintiff-appellee.
MOON, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ., and Circuit Judge ALM Assigned Due to a Vacancy. | 11166 | 68701 | Opinion of the Court by
ACOBA, J.
Petitioner/Defendant-Appellant Melodie C. Line (Petitioner) filed a petition for writ of certiorari on May 22, 2009, seeking review of the judgment of the Intermediate Court of Appeals (ICA) filed on April 28, 2009, pursuant to its April 7, 2009 Summary Disposition Order (SDO) affirming the March 3, 2006 Judgment of Conviction and Probation for Hindering Prosecution in the First Degree under Hawai'i Revised Statutes (HRS) § 710-1029 (Supp.2008), filed by the circuit court of the second circuit (the court). See State v. Line, No. 27850, 120 Hawai'i 281, 2009 WL 924509 (App. Apr. 7, 2009).
We hold that (1) unlawful police conduct is not a defense to a charge of Hindering Prosecution in the First Degree under HRS § 710-1029, however, (2) there was insufficient evidence to sustain a conviction for such an offense in this ease, and therefore, the April 28, 2009 judgment of the ICA and the March 3, 2006 judgment of conviction of the court are vacated; but (3) the case is remanded to the court for entry of a judgment of conviction on the lesser included offense of Hindering Prosecution in the Second Degree.
I.
A.
On July 12, 2005, police discovered Petitioner’s son, Dean Line, Jr. (Dean), with a glass crystal methamphetamine smoking pipe and a tiny Ziploc packet in his vehicle outside his residence. Police did not immediately arrest Dean, who told the officers he would arrange for his dealer to come to his house and make a transaction. Officer Clifton Perreira (Officer Perreira) consented to Dean’s setting up a transaction. Dean went into his residence purportedly to arrange the transaction, returned a few minutes later, and sat at the rear of his house. Officers drove to the end of the cul de sac to conduct surveillance, keeping Dean in their view. After ten minutes, Dean went back into his home and did not return. After five more minutes, the officers drove to the back of the house Dean had entered and called for him to come outside. A woman’s voice from the house said, “He’s not home.” Police did not attempt to enter the residence to search for Dean.
The next day, July 13, 2005, in the daytime, Officer Perreira and other officers returned to Dean’s residence to arrest Dean. Officer Perreira saw Dean when they pulled up to the residence, and Dean immediately ran. Police made visual checks from outside the fence line of the property and called for Dean to come out, and police heard a female voice from inside the house say, “He’s not home.” Officer Perreira and other officers spoke to Dean’s father and sister briefly outside the property, and both Dean’s father and sister were argumentative with police. Police left the area and, for a second time, Dean evaded arrest. Police made no arrest attempts at Dean’s residence on July 14, 2005.
On July 15, 2005, Officer Perreira, Officer Aylett Wallwork (Officer Wallwork), and Sergeant Kenneth Kikuchi (Sergeant Kikuchi) returned to Dean’s residence in the daytime. Police did not have an arrest warrant or a search warrant for the premises at 564 Ekolu Street. When the officers’ vehicle stopped in front of Dean’s driveway, Dean and another male who was in the front of the house ran into the yard through a front wooden gate on the side of the house.
The officers pursuing Dean were yelling, “Stop, police.” Officer Perreira and Sergeant Kikuchi ran around the house towards the back. Officer Perreira and Sergeant Ki-kuchi were in plain clothes, with shirts tucked in, exposing their guns, Tasers, and badges worn on their belts. Officer Perreira then saw Dean running on a second-story balcony and entering the house through a sliding glass door. Sergeant Kikuchi saw Dean come out from a side door of the residence, yell for Dean’s mother, and run to the east side of the house. Sergeant Kikuchi saw Dean scale a makeshift stairway to the second floor balcony and enter the house through a sliding glass door.
Officer Perreira jumped on the balcony, yelled at Dean to stop, and identified the officers as police. Officer Perreira saw Dean’s mother, Petitioner, brace herself into the sliding glass door’s opening with her hands on the slider and her back against the door frame, blocking Officer Perreira’s entry. Officer Perreira told Petitioner to “get out of the way,” “we’ve got to arrest him,” and “police.” Petitioner did not move and responded, “Get the f— out of here. You need a search warrant.”
Sergeant Kikuchi got to the second-floor balcony and saw Officer Perreira struggling with Petitioner. Sergeant Kikuchi yelled, “Police[, g]et out of the way,” but Petitioner refused to move. Sergeant Kikuchi then pushed Officer Perreira into Petitioner, knocking her down and allowing Officer Per-reira to enter the house.
Petitioner then grabbed Sergeant Kiku-ehi’s shirt and yelled at him to get out. Sergeant Kikuchi told Petitioner to let go, “We’re police,” and “We’re after Dean, he needs to be arrested.” The officers did not locate Dean in the residence or on the property. Officer Perreira noticed his arm was scratched and attributed it to Petitioner’s struggle with him at the doorway. Sergeant Kikuchi’s shirt sleeve had a tear in it that Petitioner caused while holding his sleeve after he pushed into Petitioner and Officer Perreira at the door.
Officer Perreira and Sergeant Kikuchi were acting under the color of their official authority when attempting to arrest Dean on July 15, 2005.
B.
On September 6, 2006, Petitioner was charged by indictment with the following counts:
Count One: Hindering Prosecution in the First Degree in violation of [HRS § 710-1029(1)]; and
Count Two: Assault Against a Law Enforcement Officer in the Second Degree in violation of HRS § 707-712.6 [ (Supp.2008) ].
On January 3, 2006, Petitioner filed a motion in limine, arguing that the “[pjolice had no right to arrest [Dean] without a warrant.” She moved the court for an order “precluding any evidence [from trial] regarding police contact with [Dean], as irrelevant and prejudicial[,]” or alternatively, for a dismissal of her case with prejudice.
The court denied Petitioner’s motion in limine. In denying Petitioner’s motion, the court determined that the police entry had been lawful. Alternatively, the court stated that “[e]ven if the attempt to arrest Dean on July 15, 2005, is viewed as unlawful, the appropriate remedy can be found in suppression of evidence against Dean or the pursuit of civil damages.” The court concluded that “the interest of maintaining a well-ordered society far outweigh [sic] any benefit that might be derived from allowing a person to physically challenge or obstruct the police as they are attempting to arrest another person.”
On January 5, 2006, after a jury trial, Petitioner was found guilty of Hindering Prosecution in the First Degree. She was acquitted of the charge of Assault Against a Law Enforcement Officer in the Second Degree.
Petitioner was sentenced to probation, and judgment was entered on March 3, 2006. On March 31, 2006, Petitioner filed a Notice of Appeal. On direct appeal, Petitioner argued, inter alia, that she had a right to refuse an unlawful intrusion by police into her home.
In its April 7, 2009 SDO, the ICA affirmed Petitioner’s conviction and sentence of probation. See Line, 2009 WL 924509, at *1. The ICA concluded that the alleged unlawful intrusion by police did not vitiate the Hindering Prosecution charge, stating that
[assuming, arguendo, the police had no right to enter [Petitioner’s] home and arrest her son, the charge of Hindering Prosecution was not affected by the alleged unlawful intrusion and arrest. State v. Kachanian, 78 Hawai'i 475, 896 P.2d 931 (App.1995). In Kachanian, this court held that an illegal arrest did not affect a “resisting arrest charge.” Id. Similarly, the alleged unlawful intrusion and arrest in the instant case did not affect the Hindering Prosecution charge.
Id.
Petitioner filed an Application for Writ of Certiorari on April 16, 2009, which was dismissed without prejudice on April 20, 2009, because the ICA’s judgment had not been filed.
Petitioner subsequently filed a Second Application for Writ of Certiorari to this court on May 22, 2009 (Application), requesting that her conviction of Hindering Prosecution in the First Degree be reversed.
II.
In her Application, Petitioner presented the following questions:
1. Does a citizen at home, have a right to refuse entry to plain clothes police who have no warrant?
2. Can a citizen be convicted of HRS § 710-1029 Hindering Prosecution in the First Degree, for refusing home entry to police, who have neither arrest nor search warrant?
3. Whether the government has unfettered authority to force entry a home [sic] without any warrant.
(Emphasis omitted.)
Petitioner’s second question of whether a citizen can be convicted of HRS § 710-1029 for refusing home entry to police who have no arrest or search warrant, and third question of whether the government has “unfettered authority to force entry into a home without a warrant,” are both subsumed by the first question. Therefore, neither need be addressed separately and may be resolved by considering the first question.
III.
Respondent/Plaintiff-Appellee State of Hawaii (Respondent) did not file a memorandum in opposition. On July 6, 2009, this court ordered supplemental briefing to address the issue of whether this court should recognize plain error on the part of the court and the ICA on the issue of whether a jury instruction should have been issued on the lesser included offense of hindering prosecution in the second degree, under HRS § 710-1030 (1993). On July 15, 2009, Respondent filed its supplemental brief. On July 16, 2009, Petitioner filed her supplemental brief.
A.
In Petitioner’s supplemental brief, she essentially argued that a hindering prosecution charge in any degree was not supported, and, therefore, “[a] strategic decision was made not to request a lesser included instruction on Hindering Prosecution in the Second Degree[,]” because “[t]o request an instruction on the lesser included offense was seen as a risk that the jury would make a compromise verdict on the lesser included charge rather than acquit.”
Petitioner further emphasizes in her supplemental brief the lack of sufficiency of the overall evidence to support either charge. In that connection, Petitioner states that “[according to police, [Petitioner’s] ‘criminal act’ consisted of standing inside her home and blocking entry to the two plain clothes police who were looking for her son to use in a sting operation.”
But, according to Petitioner,
[s]he testified that she was sitting on the couch with her grandson when suddenly Sergeant Kikuchi “opens the sliding glass door, comes plowing in. I’m sitting on the couch talking to my grandson. He comes in, and he backhands me.... Casey [her grandson] on the side of me was appalled. He went to—by the pantry area right by the stairway, and he was going, ‘What are you doing? Don’t do this to my nana’ and that’s when the officer pushed me back on the couch. I got back up and said, What are you doing up here? Get the heck out of here.’ ”
Based on the foregoing version of the facts, “and the belief that [Petitioner] was credible[,]” Petitioner’s counsel did not request the lesser included offense.
B.
In its supplemental brief, Respondent argues (1) that an instruction on hindering prosecution in the second degree was not warranted, and, (2) alternatively, any error in failing to give such an instruction was harmless. Respondent maintains that “in the instant case, there was no rational basis in the evidence that the offenses committed by [Dean] were felonies [sic,]” because “[t]he evidence was clear that the underlying offenses committed by [Dean] were [felonies].”
C.
On July 17, 2009, Respondent filed an amended supplemental brief. With regard to whether a lesser included offense instruction should have been given, Respondent acknowledges that “there was evidence that [Petitioner] did not know that the charges pending against her son were felonies[,]” and “[t]hus, it was plain error for the trial court and the ICA not to find that the lesser included offense instruction was necessary.”
Respondent went on to admit that “[t]here was no substantial evidence to support [Petitioner’s] conviction[,]” because “[b]oth Officer Perreira and [Sergeant] Kikuchi testified that they did not tell [Petitioner] about the nature of the charges pending against her son[,]” and “there was no evidence presented that she was aware or believed or hoped that the pending charges against her son were felonies.” Based on the foregoing, “[Respondent] requested] that this matter be reversed and the matter remanded to the trial court for dismissal with prejudice.”
Oral argument on the merits was heard on July 20, 2009.
IV.
This court has stated that
[i]n confession of error cases where the prosecution admits to error, this court has stated that, even when the prosecutor concedes eiTor, before a conviction is reversed, it is incumbent on the appellate court first to ascertain ... that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial. In other words, a confession of error by the prosecution is not binding upon an appellate court, nor may a conviction be reversed on the strength of the prosecutor’s official action alone.
State v. Hoang, 93 Hawai‘i 333, 336, 3 P.3d 499, 502 (2000) (quotation marks, citations and brackets omitted). Thus, we address Petitioner’s points of error raised in the application, and consider whether the error conceded by Respondent is supported by the record.
A.
As to Petitioner’s first question, Petitioner maintains that she was “constitutionally protected to stand inside [her] doorway and request plain-clothes police to produce a warrant.” She argues that although her actions—standing firm in her doorway and requesting police to produce a warrant—“rendered assistance” under HRS § 710-1029, those acts are protected under the Hawaii Constitution. Petitioner argues that the ICA erred by relying solely on Kachanian, because Kachanian is distinguishable on the law and the facts.
As noted before, the ICA cited Kachanian to support its conclusion that “the charge of Hindering Prosecution was not affected by the alleged unlawful intrusion and arrest.” See Line, 2009 WL 924509, at *1. Kachanian held that, although the initial seizure of the appellant and his subsequent arrest were illegal, “such illegality would not affect the ‘resisting arrest’ charge under HRS § 710-1026.” 78 Hawai'i at 485, 896 P.2d at 941. In Kachanian, the appellant swung and kicked at a police officer during the appellant’s arrest at the Kahului Airport. Id. at 479, 896 P.2d at 935. The appellant was convicted, inter alia, of Resisting Arrest in violation of HRS § 710-1026. Id. at 477, 896 P.2d at 933.
According to the Kachanian court, under HRS § 710-1026, it is no defense that the officer was making an unlawful arrest if the officer was acting under color of law. Id. (citing Commentary to HRS § 710-1026 (1985)). Kachanian stated that the rationale underlying the statute “requires that the lawfulness of an arrest be resolved in the courts because, ‘the evils involved in allowing such resistance far outweigh the infrequent and usually minor inconvenience of submitting to any arrest made under color of law and disputing it within the legal framework.’” Id. at 485, 896 P.2d at 941 (quoting Commentary to HRS § 710-1026 (1985)).
B.
Petitioner argues that Kachanian is distinguishable from the ease at bar because it involves a resisting arrest statute which has “little or no interpretive value in construing the constitutional limits of HRS § 710-1029.” According to Petitioner, Kachanian is also different on the facts because it involved an airport arrest, not an entry into a home.
However, Kachanian'⅛ interpretation of the resisting arrest statute is analogous to the case at bar. As Respondent noted, the resisting arrest statute, HRS § 710-1026, is located in the same statutory chapter, entitled “Offenses Against Public Administration,” and was enacted at the same time as the hindering prosecution statutes. The commentaries to both the resisting arrest statute and the hindering prosecution statutes describe the prohibited conduct as a form of obstructing justice. Moreover, the commentary to the resisting arrest statute provides the following:
Note that the arrest may be either of the actor or of a third 'person: the social and individual harms involved are the same in either case. Moreover, it is no defense to a charge under this section that the officer was making an unlawful arrest, provided the officer was acting under color of law. American jurisdictions have almost universally rejected the common-law doctrine that it is permissible to resist an unlawful arrest with as much force as one has at one’s disposal. In a well-ordered society, the evils involved in allowing such resistance far outweigh the infrequent and usually minor inconvenience of submitting to any arrest made under color of law and disputing it within the legal framework. The requirement that the arrest be made under color of the officer’s official authority obviates the necessity for a separate section barring such a defense.
Commentary to HRS § 710-1026 (emphasis added). The resisting arrest statute, according to the commentary, requires use of force or risk of bodily injury. The commentary additionally notes that, “[ejases of interference which do not involve force or risk of bodily injury, but which present serious social dangers are included under §§ 710-1029 and 1030 as cases of hindering prosecution.” Id. That reference indicates that the hindering prosecution statutes are complementary to the resisting arrest statute, covering a related, yet different type of conduct, inasmuch as hindering prosecution, unlike resisting arrest, covers situations that “present serious social dangers.” See id. Additionally, the resisting arrest statute’s application to the arrest of a third person demonstrates the close relation between resisting arrest and the instant case.
Here, the officers were acting under color of law when they attempted to arrest Dean on July 15, 2005. Although the officers were dressed in plain clothes, they had their shirts tucked in, exposing their guns, Tasers, and badges on their belts. The officers also identified themselves as police officers while chasing Dean. When Officer Perreira tried to enter the house to arrest Dean, Petitioner blocked the doorway. Officer Perreira told Petitioner to move, or to “get out of the way,” “Police,” and “we’ve got to arrest him,” but Petitioner refused to move. Sergeant Kikuehi saw Officer Perreira struggling with Petitioner and pushed Officer Perreira into Petitioner, knocking her down. After Officer Perreira entered the house, Petitioner then grabbed Sergeant Kikuehi’s shirt sleeve, ultimately tearing it.
Similar to resisting arrest, Petitioner’s actions—including her physical struggle with the officers—were intended to prevent police from entering the house and presumably arresting her son. As stated in the resisting arrest statute, “the arrest may be either of the actor or of a third person: the social and individual harms involved are the same in either case.” Commentary to HRS § 710-1026 (emphasis added). Thus, the essential rationale underlying the resisting arrest statute may apply to situations, such as in the instant ease, where an individual hinders a law enforcement officer’s apprehension of another.
V.
Petitioner also argues that her conviction under HRS § 710-1029 violates her constitutional right to be secure in her house. She maintains that the police had no right to enter her home without her permission, and thus, “it was not a crime to stand firm and request a warrant.”
A.
Petitioner relies in part on State v. Jim, 105 Hawai'i 319, 97 P.3d 395 (App.2004). Petitioner states that Jim “implied that the government acts must be lawful in order for a violation of HRS § 710—1010(1)[,] while interpreting ... [HRS] § 710—1010(l)(a)[,]” an obstructing government operations statute similar to the hindering prosecution statute. According to Petitioner, Jim “implied” the requirement that government acts be lawful by stating that,
[c]onsistent with the above precedent, we conclude that Jim’s continuing physical obstruction of the lawful work by the [County of Hawai'i Department of Water Supply] on the property constituted conduct clearly outside the scope of any first amendment right to freedom of speech.
Id. at 334, 97 P.3d at 410 (emphasis added). The Model Penal Code (MPC) language for “Obstructing Administration of Law or Other Governmental Function” is similar to HRS § 710-1010, entitled “Obstructing government operations.” Petitioner’s argument is unpersuasive inasmuch as the commentary to the MPC provision specifies that an actor will be liable for obstruction even if the government function involved is unlawful. Model Penal Code & Commentaries, Part II § 242.1 (Comment 7), American Law Institute 1980.
[T]he object of the obstructive conduct must be a government function, which effectively excludes from this section interference with a public servant engaged in patently ultra vires activity. But the existence of some technical illegality or irregularity in the operation of government does not relieve the actor from liability for purposive obstruction. In most contexts, this result is quite unexceptional.
Thus, purposeful obstruction of a law enforcement officer executing a search warrant is a crime even if the warrant is defective and the search consequently unlawful. This result accords with the trend in recent reeodification efforts.
Furthermore, it seems sensible on policy grounds. Lack of probable cause or other defect in a search warrant may be asserted by appropriate legal means. Self-help is poorly suited to testing the validity of a search, and it also occasions a confrontation with law enforcement officers that may well escalate into violence. Physical obstruction is not likely to dissuade an officer from executing a warrant valid on its face. It is likely to prompt him to use whatever force is necessary to overcome the interference.
Id. (emphases added). Therefore, contrary to Petitioner’s argument, it would appear that it is not required that a government action be only lawful for a violation of HRS § 710-1010 to occur.
B.
Petitioner also cites State v. Garcia, 77 Hawai'i 461, 887 P.2d 671 (App.1995), which held that HRS § 803-37 “violates the Ha-wai'i Constitution to the extent that it permits the police to break into the place to be searched if ‘bars’ to their entrance are not immediately opened.” Id. at 467, 887 P.2d at 677. Petitioner argues that the application of HRS § 710-1029 similarly violates the Ha-wai'i Constitution “to the extent that it permits the police to break into a home of a grandmother standing up for her constitutional right against a warrantless invasion.”
However, Garcia is distinguishable from the case at bar because HRS § 803-37 governs the conduct of an officer who is charged with executing a warrant and expressly allows an officer under certain circumstances to break doors, gates, or other bars to entrance. In other words, while Garcia concerns a statute that directly prescribes the procedure for police searches, the present case is about a statute that prohibits certain actions in response to a police search. Therefore, Garcia is not applicable or persuasive.
C.
Contrary to Petitioner’s constitutional argument, limiting an individual’s ability to resist an unlawful arrest
“does not contribute to or effectuate [a] deprivation of liberty,” but only withdraws a remedy which “not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself’ and requires the arrestee “to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process.”[ ]
Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.1(o) (3d ed.2007) (quoting People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969)). “But, ‘circumstances are readily imaginable in which an arrest would be so flagrant an intrusion on a citizen’s rights that his resistance would be virtually inevitable,’ in which case it well may be that conviction for the resistance would violate due process.” Id. (quoting United States ex rel. Horelick v. Criminal Court, 366 F.Supp. 1140 (S.D.N.Y.1973)). The same rationale “applies to other forms of self-help undertaken in active resistance to a Fourth Amendment violation, such as forcible opposition to the execution of an invalid search warrant[,]” but that does not mean that criminal punishment may be imposed for a “mere failure to surrender rights.” Id. (footnotes omitted).
D.
Petitioner also argues that the circumstances in the present case called for obtaining a warrant before entering Petitioner’s residence. The court determined that in “pursuing] Dean into his home on July 15th,” an arrest warrant was not required and that the attempt to effect a warrantless arrest of Dean was lawful. The court’s conclusion that the July 15, 2005 attempt to effect an arrest on Dean in entering Petitioner’s home was lawful is clearly wrong.
In its decision the court relied on Keawe. In Keawe, a police officer assigned to investigate prostitution at a nude-dancing establishment paid for and received two “lap dances” by the appellant. 107 Hawai'i at 3, 108 P.3d at 306. The officer did not arrest the appellant that evening; police arrested the appellant twenty days later as part of an arrest raid of the establishment. Id. It was held that the warrantless arrest of the appellant was unlawful because police had “probable cause to arrest, [had] no obstacle preventing them from making the arrest, and wait[ed] a significant amount of time before making the arrest.” Id. at 6, 108 P.3d at 309 (emphasis added). It was also said that “[i]f the police believe that waiting days or weeks to arrest a defendant is the most appropriate action under the circumstances, ... then the police cannot rely upon HRS § 803-5 and must obtain a warrant pursuant to HRS § 803-1.” Id. at 7, 108 P.3d at 310.
The court held that, unlike Keawe, Dean’s actions caused the initial delay in his arrest, and the police did not wait a “significant amount of time” from the inception of probable cause to arrest Dean. The court in effect attempted to establish a new exception to the warrant requirement, by concluding that police do not need a warrant to enter a home as long as they do not delay “significant[ly]” in effectuating the arrest. To the contrary, the 63 hours between the inception of probable cause and the July 15, 2005 attempted arrest afforded police ample time to obtain an arrest warrant and they were plainly required to do so before invading Petitioner’s home. See Keawe, 107 Hawai'i at 7, 108 P.3d at 310.
More significantly, the court’s reliance on Keawe is misplaced, as that ease did not deal with entry into a home. Hawai'i courts and the United States Supreme Court have both long held that there is a unique interest in privacy in the home. Both this court and the ICA have emphasized the “tradition of respect for the privacy of the home ” in holding that, “before attempting forcible entry, the police must specifically ‘demand entrance,’ ” under HRS § 803-37, and that, under article I, section 7 of the Hawai'i Constitution, police must give occupants a “reasonable opportunity” to respond when entering a home pursuant to a valid warrant. State v. Monay, 85 Hawai'i 282, 284, 285, 943 P.2d 908, 910, 911 (1997) (emphasis added); Garcia, 77 Hawai'i at 466, 467, 887 P.2d at 676, 677 (emphasis added).
Similarly, this court has adopted the reasoning of the U.S. Supreme Court in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), recognizing that “ ‘the Fourth Amendment draws a firm line at the entrance to the house, and in the home all details are intimate details, because the entire area is held safe from prying government eyes.’” State v. Detroy, 102 Hawai'i 13, 21, 72 P.3d 485, 493 (2003) (quoting Kyllo, 533 U.S. at 37, 40, 121 S.Ct. 2038) (internal quotation marks, citations, brackets, and ellipsis omitted) (emphasis added). In Detroy, in agreeing with the U.S. Supreme Court that “the warrantless use of the thermal imager to measure heat emanating from the interior of [the defendant's apartment was a prohibited search that violated the Fourth Amendment[,]” and was therefore illegal, id., this court “h[e]ld, additionally, that the same result would be reached on independent state constitutional grounds under article I, section 7 of the Hawai'i State Constitution.” Id. In so holding, this court emphasized that “[i]t has long been recognized in Hawai'i that generally, a person has an actual, subjective expectation of privacy in his or her home.” Id. at 22, 72 P.3d at 494 (citation omitted). Because of the special privacy interest in the home, “[i]t is now settled that any warrant-less entrance of a private dwelling by the police can only be justified under the ‘exigent circumstances’ exceptions to the warrant requirement of the Fourth Amendment[,]” State v. Fauver, 1 Haw.App. 3, 5, 612 P.2d 119, 121 (1980), which manifestly were not present in this case.
The ICA in its SDO did not answer this issue, affirming Petitioner’s conviction on the holding in Kachanian, but only after “assuming arguendo [that] the police had no right to enter Petitioner’s home to arrest her son.” See Line, 2009 WL 924509, at *1 (emphasis added).
In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) the United States Supreme Court recognized the paramount importance of the Fourth Amendment and expressed cogent disapproval of the illegal police action in that case. In Mapp, the police forcibly entered the petitioner’s home after she refused entry absent a warrant, id. at 644, 81 S.Ct. 1684, and subsequently discovered “lewd and lascivious books and pictures[,]” for which the petitioner was subsequently prosecuted, id. at 643, 81 S.Ct. 1684. The Supreme Court reversed the conviction, holding that the evidence should have been excluded because “[a]t the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for[,]” id. at 645, 81 S.Ct. 1684, and “quite simply, [ ] conviction by means of unlawful seizures and enforced confessions should find no sanction in the judgments of the eourts[,]” id. at 648, 81 S.Ct. 1684. The Mapp court recognized that
[njothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Bran-déis, dissenting, said in Olmstead v. United States, [277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) ]: ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’
Id. at 659, 81 S.Ct. 1684 (footnote, citation, and some internal quotation marks omitted) (emphases added).
In this case, as in Mapp, police forcibly entered Petitioner’s home without a warrant. We do not condone the illegal entry by the police into the home of Petitioner without a warrant and in the absence of any exigent circumstances. There was no conceivable basis in the law to uphold the entry as valid and so we reverse the court’s conclusion to the contrary.
VI.
Although the entry by the police into the home was illegal, we are constrained to apply the hindering prosecution statute inasmuch as the risk of dangers associated with physically resisting such an intrusion at the time it occurs, outweighs whatever vindication of personal rights might be accomplished through physical resistance at that moment.
A.
There is some authority in other jurisdictions holding that an illegal detention or search ordinarily will not bar a conviction for an unlawful response committed by the person subjected to an illegal police action. For example, in New Jersey v. Casimono, state troopers conducted pat down searches of the defendant and his co-defendant after a traffic stop. 250 N.J.Super. 173, 593 A.2d 827, 829 (1991). The defendant and co-defendant resisted, and the defendant threw a bag from the ear over the roadway guardrail. Id. The defendant was convicted, inter alia, of hindering apprehension by destroying or concealing evidence, and resisting arrest. Id. at 828-29. The Superior Court of New Jersey, Appellate Division held that the pat down searches of the defendant were illegal. Id. at 832. But that court also held that the defendant’s “convictions for resisting arrest and hindering apprehension were for new offenses committed subsequent to the unlawful pat down searches and therefore were not subject to the taint of police misconduct.” Id. at 833.
In United States v. Ferrone, the Third Circuit Court of Appeals held that a person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though the warrant may subsequently be found invalid. 438 F.2d 381, 390 (3d Cir.1971). In Ferrone, the appellant was convicted of, inter alia, assaulting, resisting and opposing Internal Revenue Service agents who were attempting to execute a search warrant of his apartment and a search warrant for his person. Id. at 383. The appellant contended that the searches were unlawful and therefore he had a right to resist arrest. Id. at 387. The Third Circuit stated that
[sjoeiety has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. We think a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search. The development of legal safeguards in the Fourth, Fifth, Sixth and Fourteenth Amendment fields in recent years has provided the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance.
Id. at 390 (emphases added). The Ferrone court, however, expressly stated that it was not deciding whether a person would, under some circumstances, have a right to resist an unlawful warrantless search. Id. at 390 n. 19.
In United States v. Prescott, the Ninth Circuit Court of Appeals held that a home occupant can refuse admission to an officer who demands entry but presents no warrant, but limited its holding to “passive” refusals rather than forcible resistance. 581 F.2d 1343, 1350-51 (9th Cir.1978). In Prescott, federal agents asked the appellant for permission to search her apartment for a mail fraud suspect. Id. at 1347. The appellant, who had lied when she told the agents the suspect was not in her apartment, asked the agent if he had a warrant. Id. When he replied that he did not, the appellant said nothing in response but “steadfastly declined to unlock her door.” Id. After another home occupant refused to let the agents enter the apartment, the agents warned that if the door were not unlocked in three seconds they would enter the apartment forcibly. Id. The officers kicked the door in and immediately located the suspect. Id. The appellant was charged with assisting a federal offender in order to hinder or prevent his apprehension in violation of 18 U.S.C. § 3, which defines an accessory after the fact. Id. at 1346.
The Ninth Circuit held that the appellant’s refusal to allow the agents to enter her apartment without a warrant was privileged conduct that should not have been considered as evidence of the crime charged. Id. at 1353. The Ninth Circuit stated that,
[h]ad the respondent not objected to the officer’s entry of her house without a search warrant, she might thereby have waived her constitutional objections. The right to privacy in the home holds too high a place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent did here....
One cannot be penalized for passively asserting this right, regardless of one’s motivation.
Id. at 1351 (emphasis added). However, the Ninth Circuit also stated that had the appellant “forcibly resisted the entry into her apartment, we might have a different case. We express no opinion on that question.” Id.
B.
In the present ease, the facts as found by the court in the motion in limine and as indicated by the jury verdict at trial, indicate that Petitioner’s conduct exceeded a mere passive assertion of a right against a war-rantless search of her home. Unlike the appellant in Prescott, Petitioner did not merely refuse to unlock her door; she braced herself into the sliding glass door’s opening with her hands on the slider and her back against the door frame, blocking the officer’s entry. She responded to the officers’ orders to move with words to the effect of “Get the f— out of here, you need a search warrant.” Petitioner continued to refuse the officers’ orders to move although they identified themselves as police. Sergeant Kikuehi saw Officer Perreira “struggling” with Petitioner.
After Sergeant Kikuehi pushed Officer Perreira into Petitioner, knocking her down and allowing Officer Perreira to enter the house, Petitioner grabbed Sergeant Kikuchi’s shirt and yelled, “Get the f— out.” After the incident was over, Officer Perreira no ticed his arm was scratched and attributed it to Petitioner, and Sergeant Kikuchi’s shirt sleeve had a tear in it that Petitioner caused while holding his sleeve. Such conduct on the part of Petitioner demonstrates a form of resistance that is more than merely failing to surrender rights. In attempting to hinder the officers’ apprehension of her son, Petitioner did not just passively refuse to open the door to her home; she intentionally used physical force to obstruct the officers.
VII.
Despite the foregoing, as Respondent concedes, based on the record in this case, there is insufficient evidence as a matter of law to convict Petitioner of Hindering Prosecution in the First Degree under HRS § 710-1029.
A.
This court has stated the standard of review for sufficiency of the evidence as follows:
Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact. Substantial evidence as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.
State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008) (brackets, citations, quotation marks, and internal quotation marks omitted) (emphases added).
B.
In this ease, Petitioner’s conviction for hindering prosecution in the first degree, under HRS § 710-1029, hinged on her awareness that Dean was being pursued “for a class A, B, or C felony[.]” HRS § 710-1029. HRS § 710-1029 requires that, in order for a conviction to stand, Petitioner must have acted “with the intent to hinder the apprehension ... of another for a class A, B, or C felony [.] ” (Emphases added.) HRS § 702-206 (1993), entitled “Definitions of states of mind,” provides that, “[a] person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist.” (Emphasis added.) Thus, HRS § 710-1029 requires that Petitioner was “aware of the existence” of the attendant circumstance that Dean was being “appre-hen[ded] ... for a ... felony.”
The court’s Instruction 16, regarding the hindering prosecution charge, indicated that Petitioner must have rendered assistance to Dean “with the intent to hinder the apprehension, prosecution, conviction or punishment of that person for a felony.” (Emphasis added.) Instruction 17 provided that “[a] person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances [.] (Emphasis added.) Thus, read together, those instructions indicate that the jury had to find that Petitioner was “aware” of the circumstance that Dean was being arrested “for a felony.” However, there was no evidence in the trial record that Petitioner was aware of such circumstance.
That attendant circumstance is a vital element of the offense inasmuch as, without it, Petitioner could only have been convicted of the lesser, misdemeanor offense of hindering prosecution in the second degree, pursuant to HRS § 710-1030. Although there was evidence presented that the “charges” against Dean were felonies, there was no evidence presented that Petitioner herself was aware at the time of the conduct at issue that any crime for which Dean was being pursued was a felony. At trial, Officer Perreira speculated as to “what offenses would [Dean’s] be under Hawai'i law[,]” stating that
[w]ell, the crystal methamphetamine would be promoting a dangerous drug in the third degree for any amount of crystal methamphetamine. And the pipe and the packet would actually be paraphernalia which is promoting prohibited acts related to drug paraphernalia, and they are both Class C felonies.
(Emphases added.) Subsequently, the following exchange transpired upon redirect examination of Officer Perreira by the prosecution:
[PROSECUTING ATTORNEY SHEPPARD (PROSECUTION) ]: The two charges that you just described, prohibited acts related to drug paraphernalia and promoting a dangerous drug in the third degree, what level of crimes are those under Hawai[’]i law?
[OFFICER PERREIRA]: Felonies, Class C felonies.
Q. Both individually?
A. Yes.
The following reeross-examination by defense counsel immediately followed:
Q. And you did not inform [Petitioner] about those charges[J correct?
A. Correct.
(Emphases added.) The court subsequently took judicial notice that those crimes are classified as Class C felonies under the Ha-wai'i Revised Statutes.
Defense counsel additionally elicited testimony from Sergeant Kikuehi, the only other prosecution witness, that he did not inform Petitioner of the charges:
Q. Have you ever met [Petitioner] pri- or to July 15th?
A. Yes.
Q. Now, did you ever tell [Petitioner] that there were charges against her son on July 15th?
A. No, I did not.
(Emphasis added.) The prosecution further questioned Petitioner
Q. Now, you don’t watch Dean 24/7; right? He’s an adult?
A. He’s an adult.
Q. So you really can’t account for what he was doing at 9:55 p.m. on July 12th, 2005?
A. No, I was at work then any ways [sic].
Thus, the trial record was absent of any evidence that Petitioner was aware of any particular crime committed by Dean. Instead, there was evidence only that she was generally informed by the officers that “We’re after Dean, he needs to be arrested.”
Based on the foregoing, there was no evidence presented that Petitioner was aware of the attendant circumstance that Dean committed a felony, and thus, there was an insufficient basis for her conviction of a felony under HRS § 710-1029.
VIII.
A.
HRS § 701-109(4)(a) (1993) provides that
[a] defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged [.]
(Emphases added.) HRS § 710-1029 provides:
(1) A person commits the offense of hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction, or punishment of another for a class A, B, or C felony or murder in any degree, the person renders assistance to the other person.
(2) Hindering prosecution in the first degree is a class C felony.
(Emphases added.) Similarly, HRS § 710-1030 provides that:
(1) A person commits the offense of hindering prosecution in the second degree if, with the intent to hinder the apprehension, prosecution, conviction, or punishment of another for a crime, he renders assistance to such person.
(2) Hindering prosecution in the second degree is a misdemeanor.
(Emphases added.) Thus, the two offenses differ only in that the first degree offense requires that the “crime” be a felony or murder, and that HRS § 710-1029 is a felony offense, while HRS § 710-1030 is a misdemeanor. Thus, HRS § 710-1030 is manifestly included in HRS § 710-1029, as “[HRS § 710-1030] is established by proof of the same or less than all the facts required to establish the commission of [HRS § 710-1029.]” (Emphasis added.)
B.
It is established that “if an appellate court determines that the evidence presented at trial was insufficient to support a conviction of a greater offense but sufficient to support a conviction of a lesser included offense, the court may remand for entry of judgment of conviction on the lesser included offense[.]” Malufau, 80 Hawai'i at 136, 906 P.2d at 622. For example, in State v. Mattiello, this court concluded that
the prosecution adduced insufficient evidence that the amount of the methadone mixture sold by Mattiello was “three-eighths ounce or more[,]” [as required for conviction of the greater offense of promoting a dangerous drug in the first degree.] Because, however, there was substantial evidence that Mattiello distributed methadone “in any amount, ” we remand for entry of conviction of the lesser included offense of promoting a dangerous drug in the second degree, in violation of HRS § 712-1242(l)(c)
90 Hawai'i 255, 262, 978 P.2d 693, 700 (1999) (emphases added); see also State v. Mueller, 102 Hawai'i 391, 397-98, 76 P.3d 943, 949-50 (2003) (“deemfing] the evidence insufficient as a matter of law to support a jury’s guilty verdict on a greater offense” of sexual assault in the first degree, but concluding that “the evidence is sufficient to sustain a conviction of the offense of sexual assault in the third degree,” and, therefore, “remandfing] this matter to the circuit court for the entry of a judgment of conviction of the included offense of sexual assault in the third degree” (citation omitted)); State v. Wallace, 80 Hawai'i 382, 414-16, 910 P.2d 695, 727-29 (1996) (holding that, “having vacated Wallace’s conviction of promoting a dangerous drug in the first degree ... for evidentiary insufficiency, the double jeopardy clause ... bars a retrial of that offense[,]” but concluding that, “there was sufficient evidence presented at trial to support th[e] lesser included offense ... of promoting a dangerous drug in the third degree[,]” and therefore “hold[ing] that, upon remand ... to the circuit court, a judgment should be entered convicting Wallace of promoting a dangerous drug in the third degree” (brackets, ellipsis, and citation omitted)); State v. Maddox, 116 Hawai'i 445, 449-50, 173 P.3d 592, 596-97 (App.2007) (“holding] that there was insufficient evidence to prove that [the victim’s] injury created a substantial risk of death and therefore vacating] Maddox’s conviction for first degree assault[,]” but “[bjecause ... there was ample evidence to prove that Maddox committed the lesser included offense of second degree assault, [ ] remand[ing] the case with instructions that the circuit court enter a judgment of conviction on the lesser included offense”); State v. Say, 95 Hawai'i 169, 176, 19 P.3d 752, 759 (App.2000) (concluding that “the evidence is insufficient to support a conviction of the charged offense of Theft in the Second Degree” but “the evidence is sufficient to support a conviction of the lesser included offense of Theft in the Fourth Degree[,]” and “[a]ceordingly, we vacate ... and remand with instructions to enter a judgment convicting [the defendant] of the petty misdemeanor of Theft in the Fourth Degree”); State v. Arlt, 9 Haw.App. 263, 278, 833 P.2d 902, 904 (1992) (“[e]oncluding that [the defendant did not use force ‘in the course of committing theft’ and that First Degree Robbery was thus not proved, [and] vacating the defendant's conviction,” but, “as there is overwhelming evidence on the record that [the defendant committed the lesser-included offense of Theft in the Fourth Degree, [ ] remand[ing] the case ... with instructions to enter a judgment convicting [the defendant of Theft in the Fourth Degree”).
C.
In this ease, although there was insufficient evidence to support a conviction for hindering prosecution in the first degree, there was sufficient evidence adduced to convict Petitioner of the lesser included offense of hindering prosecution in the second degree. There was evidence adduced that Petitioner used physical force to prevent the officers from pursuing Dean, that the officers were acting under color of law, and that the officers informed Petitioner that they were seeking to arrest Dean. Thus, there was substantial evidence that Petitioner “rendered] assistance” to Dean “with the intent to hinder the apprehension ... of [Dean] for a crime.” See HRS § 710-1030. Because the officers informed Petitioner that they were seeking to arrest Dean, there was sufficient evidence that she was aware of the attendant circumstance that Dean was being apprehended for “a crime,” as required for the second degree offense.
IX.
Based on the foregoing, the judgment of the ICA is reversed, the court's March 3, 2006 Order Denying Motion in Limine and Judgment of Conviction are vacated, and the ease is remanded to the court for entry of a judgment of conviction on the lesser included offense of Hindering Prosecution in the Second Degree under HRS § 710-1030.
. The SDO was filed by Presiding Judge Corinne K.A. Watanabe and Associate Judges Daniel R. Foley and Alexa D.M. Fujise.
. HRS § 710-1029(1), Hindering prosecution in the first degree, provides in relevant part that
[a] person commits the offense of hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction, or punishment of another for a class A, B or C felony or murder in any degree, the person renders assistance to the other person.
. The Honorable Joseph E. Cardoza presided.
. The pipe tested positive for the presence of methamphetamine. However, there is no evidence that the packet was ever tested.
. The facts essentially reflect findings that were part of the Findings of Fact and Conclusions of Law; Order Denying [Petitioner’s] Motion in Li-mine, filed by the court on March 3, 2006. Petitioner does not challenge any of the findings in her Application for Writ of Certiorari. Hence, the findings are binding. Kelly v. 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d 985, 1007 (2006) ("Generally, a court finding that is not challenged on appeal is binding upon [the appellate court].”).
. HRS § 707-712.6 provides:
Assault against a law enforcement officer in the second degree. (1) A person commits the offense of assault against a law enforcement officer in the second degree if the person recklessly causes bodily injury to a law enforcement officer who is engaged in the performance of duty.
(2) Assault of a law enforcement officer in the second degree is a misdemeanor. The court shall sentence the person who has been convicted of this offense to a definite term of imprisonment, pursuant to section 706-663, of not less than thirty days without possibility of probation or suspension of sentence.
. At trial, the court instructed the jury that
[t]he use of force is not justifiable to resist an arrest that the defendant knows is being made by a police officer, even if the arrest is unlawful. On the other hand, if the police officer threatens to use or uses unlawful force, the law regarding use of protective force would apply.
(Emphasis added.)
. Based on the entirety of Respondent’s argument, it can be assumed that here it intended to state that there was no rational basis that the offenses were not felonies.
. HRS § 710-1028 (1993) defines "rendering assistance” as used in the hindering prosecution statutes, HRS §§ 710-1029 and 710-1030. HRS § 710-1028 provides that
[f]or the purposes of sections 710-1029 and 710-1030, a person renders assistance to another if he:
(1) Harbors or conceals such person;
(2) Warns such person of impending discovery, apprehension, prosecution, or conviction, except this does not apply to a warning given in connection with an ef fort to bring another into compliance with the law;
(3) Provides such person with money, transportation, weapon, disguise, or other means of avoiding discovery, apprehension, prosecution, or conviction;
(4) Prevents or obstructs, by means of force, deception, or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution, or conviction of such person; or
(5) Suppresses by an act of concealment, alteration, or destruction any physical evidence that might aid in the discovery, apprehension, prosecution, or conviction of such person.
(Brackets omitted.)
.Article I, Section 7 of the Hawaii Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.
. The defendant in Kachanian was convicted under HRS § 710-1026 (1985). The current version of the statute is substantially the same.
. HRS § 710-1026 (1993 & Supp.2008) provides:
(1) A person commits the offense of resisting arrest if the person intentionally prevents a law enforcement officer acting under color of the law enforcement officer’s official authority from effecting an arrest by:
(a) Using or threatening to use physical force against the law enforcement officer or another; or
(b) Using any other means creating a substantial risk of causing bodily injury to the law enforcement officer or another.
(2) Resisting arrest is a misdemeanor.
. The commentary to HRS § 710-1026 provides that "[r]esisting arrest is one of the commonest forms of obstructing government operation." (Emphasis added.) The commentary to HRS §§ 710-1028 through 30 provides, in relevant part:
These sections ... would have been treated at common law under the heading of accessory after the fact. However, in keeping with the philosophy stated in those earlier sections, liability for conduct relating to an offense which has already been consummated ought to be determined more with regard to the dangerousness of the particular post-offense acts involved than with regard to the dangerousness of the prior substantive offense. Thus, the conduct involved in these sections is treated sui generis as a form of obstructing justice. The offense of hindering prosecution focuses on the fact that the real danger involved in such conduct is that of subverting or obstructing the administration of justice ....
The underlying conduct involved in these sections is that of rendering assistance to another. Such assistance is defined in terms of attempts to evade or impede justice at any stage of the apprehension, prosecution, conviction, or punishment of a potential or actual offender
(Emphases added.) (Footnote omitted.)
. Petitioner could have been charged with resisting arrest under HRS § 710-1026, a misdemeanor, but instead was charged with hindering prosecution in the first degree under HRS § 710-1029, which is a Class C felony.
. HRS § 710-1010(1) (Supp.2008), Obstructing government operations, provides in pertinent part:
(1) A person commits the offense of obstructing government operations if, by using or threatening to use violence, force, or physical interference or obstacle, the person intentionally obstructs, impairs, or hinders:
(a) The performance of a governmental function by a public servant acting under color of the public servant’s official authority; or
(b) The enforcement of the penal law or the preservation of the peace by a peace officer acting under color of the peace officer's official authority[.]
. HRS § 710-1010 is similar to Model Penal Code § 242.1. MPC § 242.1, Obstructing Administration of Law or Other Governmental Function, provides:
A person commits a misdemeanor if he purposely obstructs, impairs or perverts the administration of law of other governmental function by force, violence, physical interference of obstacle, breach of official duty, or any other unlawful act, except that this Section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.
. HRS § 803-37 (1993), Power of officer serving, provides that
[t]he officer charged with the warrant, if a house, store, or other building is designated as the place to be searched, may enter it without demanding permission if the officer finds it open. If the doors are shut the officer must declare the officer’s office and the officer's business, and demand entrance. If the doors, gates, or other bars to the entrance are not immediately opened, the officer may break them. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer’s inspection, and if refused the officer may break them.
. It should be noted that unlawful police intrusion into the home is never a "minor inconvenience.” See Kachanian, 78 Hawai'i at 485, 896 P.2d at 941. Pursuing a civil remedy for such an invasion through judicial processes after the fact, as suggested by the court, is often ineffective. Civil suits appear to have little effect. See Wayne R. LaFave, Search and Seizure § 1.10 (4th ed. 2004) ("Much has been written concerning those other remedies for police misconduct which involve proceeding directly against the offending officer, such as tort actions for trespass or battery, criminal prosecutions, and disciplinary action. The conclusion usually reached is that these other remedies are inadequate...." (Footnotes omitted.)).
.Plainly the officers were not in "hot pursuit" of Dean during their warrantless entry into Petitioner’s home. The United States Supreme Court has viewed "hot pursuit” as an exception to the warrant requirement. Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citing U.S. v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)). But this court in State v. Elderts stated that "hot pursuit” is not an exception to the warrant requirement but “merely a criterion to be considered in determining if, given probable cause, exigency exists to justify a warrantless search.” 62 Haw. 495, 498, 617 P.2d 89, 92 (1980). However, subsequent cases have implied that "hot pursuit" is an exception to the warrant requirement. See, e.g., State v. Vallesteros, 84 Hawai'i 295, 933 P.2d 632 (1997). In Valleste-ros, this court stated that the "plain view doctrine dictates that: if the original intrusion is justified, such as by consent, hot pursuit, warrant or as incident to an arrest, objects sighted in plain view will be admissible so long as the view was inadvertent.” Id. at 304, 933 P.2d at 641 (quoting State v. Wallace, 80 Hawai'i 382, 395, 910 P.2d 695, 708 (1996)) (emphasis added).
In Elderts, the officers, responding to an early morning report of burglarized hotel rooms, went to an apartment into which the hotel manager saw two men carry a television. 62 Haw. at 496-97, 617 P.2d at 91. Police knocked repeatedly on the door with no response and learned that the tenant of the apartment was on another island. Id. at 497, 617 P.2d at 91. After seeing the lanai door partially open, one of the officers climbed on the balcony, knocked several times, and announced he was a police officer. Id. Receiving no response, the officer entered the apartment. Id. This court held that "under the circumstances, the constitution does not require the police officers to break off their pursuit to seek a warrant and chance violence or escape by the suspects.” Id. at 500, 617 P.2d at 93.
The present case is distinguishable, however, as police discovered Dean with a pipe that contained crystal methamphetamine on July 12, 2005, 63 hours before officers located and pursued Dean into his home on July 15, 2005. Under those facts, it does not appear that exigent circumstances existed such that the officers were prevented from obtaining a warrant prior to arresting Dean. Thus, manifestly, a warrant should have been obtained. See State v. Keawe, 107 Hawai'i 1, 5-7, 108 P.3d 304, 308-10 (2005) (holding that there is a "temporal restriction on the police’s [] power to make a warrantless arrest” and "if the police believe that waiting days or weeks to arrest a defendant is the most appropriate action under the circumstances, ... then the police ... must obtain a warrant”).
. HRS § 803-5 (1993), entitled "By police officer without a warrant,” provides in pertinent part as follows:
(a) A police officer or other officer of justice, may, without warrant, arrest and detain for examination any person when the officer has probable cause to believe that such person has committed any offense, whether in the officer's presence or otherwise.
(b) For purposes of this section, a police officer has probable cause to make an arrest when the facts and circumstances within the officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a crime has been or is being committed.
HRS § 803-1 (1993), "Arrest; by warrant,” provides that:
No arrest of any person shall be made without first obtaining a warrant or other process therefor from some magistrate, except in the cases provided in this chapter or otherwise provided by law.
. See supra note 17.
. See supra note 10.
. Hindering apprehension by destroying or concealing evidence is a violation of New Jersey Statutes Annotated 2C:29-3b(1), which provides that
[a] person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the Revised Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he: (1) Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him[.]
Although this section of the New Jersey statute concerns hindering one's own apprehension or prosecution, it is similar to Hawaii’s hindering prosecution statutes, which list preventing apprehension and suppressing evidence as prohibited conduct. HRS § 710-1028(4) and (5) provides that
[f]or the purposes of sections [710-1029 and 710-1030], a person renders assistance to another if he:
(4) Prevents or obstructs, by means of force, deception, or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution, or conviction of such person; or
(5) Suppresses by an act of concealment, alteration, or destruction any physical evidence that might aid in the discovery, apprehension, prosecution, or conviction of such person.
. The Ferrone court stated that "despite appellant's insistence that we are dealing with the right to resist an illegal arrest in this case, it is clear that we are really dealing with one’s right to resist an illegal search.” 438 F.2d at 390 n. 18 (emphasis added).
. Despite the court’s general instructions on this issue, the jury was not specifically instructed that the language in HRS § 710-1029 requiring "a class A, B, or C felony” is an "attendant circumstance.” Thus, it is not clear that the jury would have understood that it needed to find that Petitioner was aware of that circumstance in order to sustain a conviction.
. The jury subsequently submitted a question to Officer Perreira, "What were the two charges?” He replied that "[t]he two charges for Dean Line would be prohibited acts related to drug paraphernalia and promoting a dangerous drug in the third degree.” (Emphasis added.) No evidence was ever presented as to what the charges against Dean actually were or whether felony charges were actually pursued. The commentary to HRS §§ 710-1028 to -1030 provides that "[w]here the underlying offense is a class A, B or C felony, hindering prosecution is a class C felony. Where the underlying offense is a misdemeanor or petty misdemeanor, or where culpability on the part o[ the other with respect to class or grade o[ the underlying cause cannot be proved, hindering prosecution is a misdemeanor." (Emphases added.)
. The following exchange transpired:
[PROSECUTION]: Actually, I’m going to ask the [c]ourt to judicially notice that prohibited acts related to drug paraphernalia and promoting a dangerous drug in the third degree are Class C felonies under Hawai'i law.
[COURT]: Mr. Johnson.
[DEFENSE COUNSEL JOHNSON (JOHNSON) ]: I’ll object to that.
[COURT]: All right. Well, the Hawai'i Revised Statutes provides that those are Class C felonies under the State of Hawai'i, and as a result under the laws of the State of Hawai'i, the [cjourt will take judicial notice of that. I could also incorporate that into jury instructions if so requested. All right. Thank you.
.Additionally, the prosecutor made statements in her closing argument that could have led to jury confusion as to what evidence was actually required to convict Petitioner of the first degree offense. In her closing argument, the prosecutor indicated that the court had not only taken notice of the mere fact that the two crimes discussed by Officer Perreira are defined as Class C felonies in the Hawai'i Revised Statutes, but implied that the court had also taken judicial notice that Dean had actually committed two felonies:
This all kind of started on July 12th when [Petitioner's] son was found committing two Class C felonies, that was the possession of drug paraphernalia and the possession of crystal methamphetamine packet and the drugs in the pipe as well. So it’s two Class C felonies. The judge took judicial notice of that. And in your instructions, it says that you may—you may accept judicial notice as proving that outright.
(Emphases added.) Those statements are misleading inasmuch as the court did not take judicial notice that Dean committed those crimes, but only that the crimes are defined as Class C felonies under the code—a matter proper for judicial notice inasmuch as it can be determined merely by consulting the Hawaii Revised Statutes. Moreover, the prosecutor’s statements incorrectly indicate that the judge’s statements were enough to prove that element of the crime '’outright,’’ regardless of Petitioner's state of mind.
. It does not appear that in any of the foregoing cases the lesser included offense of which the defendant was ultimately convicted was charged by the prosecution. |
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